BILL REQ. #: H-4004.2
| State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 01/18/10. Referred to Committee on Local Government & Housing.
AN ACT Relating to regulating shorelines of the state solely through the shoreline management act; amending RCW 36.70A.030, 36.70A.280, 36.70A.290, 36.70A.300, 36.70A.320, 90.58.030, 90.58.080, 90.58.090, 90.58.100, 90.58.110, 90.58.120, 90.58.140, 90.58.180, and 90.58.190; adding a new section to chapter 36.70A RCW; creating a new section; and repealing RCW 36.70A.480 and 36.70A.481.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that the blending of
the growth management act and the shoreline management act has lead to
significant confusion and litigation. The litigation and complexity of
the requirements of the acts cost governments millions of dollars
annually. It is the intent of the legislature to separate overlapping
obligations of the acts to ensure that the shoreline management act
governs activities on the shorelines of the state in accordance with
legislative directives executed by local governments.
The legislature further finds there is a need to simplify the
approval process for shoreline master programs adopted by local
authorities, and there is a need to reduce the size of government
during this economically stressed time. The legislature intends to
streamline the approval process and reduce costly obligations borne by
the department of ecology.
Sec. 2 RCW 36.70A.030 and 2009 c 565 s 22 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Adopt a comprehensive land use plan" means to enact a new
comprehensive land use plan or to update an existing comprehensive land
use plan.
(2) "Agricultural land" means land primarily devoted to the
commercial production of horticultural, viticultural, floricultural,
dairy, apiary, vegetable, or animal products or of berries, grain, hay,
straw, turf, seed, Christmas trees not subject to the excise tax
imposed by RCW 84.33.100 through 84.33.140, finfish in upland
hatcheries, or livestock, and that has long-term commercial
significance for agricultural production.
(3) "City" means any city or town, including a code city.
(4) "Comprehensive land use plan," "comprehensive plan," or "plan"
means a generalized coordinated land use policy statement of the
governing body of a county or city that is adopted pursuant to this
chapter.
(5) "Critical areas" include the following areas and ecosystems:
(a) Wetlands; (b) areas with a critical recharging effect on aquifers
used for potable water; (c) fish and wildlife habitat conservation
areas; (d) frequently flooded areas; and (e) geologically hazardous
areas.
(6) "Department" means the department of commerce.
(7) "Development regulations" or "regulation" means the controls
placed on development or land use activities by a county or city,
including, but not limited to, zoning ordinances, critical areas
ordinances, ((shoreline master programs,)) official controls, planned
unit development ordinances, subdivision ordinances, and binding site
plan ordinances together with any amendments thereto. A development
regulation does not include a decision to approve a project permit
application, as defined in RCW 36.70B.020, even though the decision may
be expressed in a resolution or ordinance of the legislative body of
the county or city.
(8) "Forest land" means land primarily devoted to growing trees for
long-term commercial timber production on land that can be economically
and practically managed for such production, including Christmas trees
subject to the excise tax imposed under RCW 84.33.100 through
84.33.140, and that has long-term commercial significance. In
determining whether forest land is primarily devoted to growing trees
for long-term commercial timber production on land that can be
economically and practically managed for such production, the following
factors shall be considered: (a) The proximity of the land to urban,
suburban, and rural settlements; (b) surrounding parcel size and the
compatibility and intensity of adjacent and nearby land uses; (c) long-term local economic conditions that affect the ability to manage for
timber production; and (d) the availability of public facilities and
services conducive to conversion of forest land to other uses.
(9) "Geologically hazardous areas" means areas that because of
their susceptibility to erosion, sliding, earthquake, or other
geological events, are not suited to the siting of commercial,
residential, or industrial development consistent with public health or
safety concerns.
(10) "Long-term commercial significance" includes the growing
capacity, productivity, and soil composition of the land for long-term
commercial production, in consideration with the land's proximity to
population areas, and the possibility of more intense uses of the land.
(11) "Minerals" include gravel, sand, and valuable metallic
substances.
(12) "Public facilities" include streets, roads, highways,
sidewalks, street and road lighting systems, traffic signals, domestic
water systems, storm and sanitary sewer systems, parks and recreational
facilities, and schools.
(13) "Public services" include fire protection and suppression, law
enforcement, public health, education, recreation, environmental
protection, and other governmental services.
(14) "Recreational land" means land so designated under RCW
36.70A.1701 and that, immediately prior to this designation, was
designated as agricultural land of long-term commercial significance
under RCW 36.70A.170. Recreational land must have playing fields and
supporting facilities existing before July 1, 2004, for sports played
on grass playing fields.
(15) "Rural character" refers to the patterns of land use and
development established by a county in the rural element of its
comprehensive plan:
(a) In which open space, the natural landscape, and vegetation
predominate over the built environment;
(b) That foster traditional rural lifestyles, rural-based
economies, and opportunities to both live and work in rural areas;
(c) That provide visual landscapes that are traditionally found in
rural areas and communities;
(d) That are compatible with the use of the land by wildlife and
for fish and wildlife habitat;
(e) That reduce the inappropriate conversion of undeveloped land
into sprawling, low-density development;
(f) That generally do not require the extension of urban
governmental services; and
(g) That are consistent with the protection of natural surface
water flows and groundwater and surface water recharge and discharge
areas.
(16) "Rural development" refers to development outside the urban
growth area and outside agricultural, forest, and mineral resource
lands designated pursuant to RCW 36.70A.170. Rural development can
consist of a variety of uses and residential densities, including
clustered residential development, at levels that are consistent with
the preservation of rural character and the requirements of the rural
element. Rural development does not refer to agriculture or forestry
activities that may be conducted in rural areas.
(17) "Rural governmental services" or "rural services" include
those public services and public facilities historically and typically
delivered at an intensity usually found in rural areas, and may include
domestic water systems, fire and police protection services,
transportation and public transit services, and other public utilities
associated with rural development and normally not associated with
urban areas. Rural services do not include storm or sanitary sewers,
except as otherwise authorized by RCW 36.70A.110(4).
(18) "Urban governmental services" or "urban services" include
those public services and public facilities at an intensity
historically and typically provided in cities, specifically including
storm and sanitary sewer systems, domestic water systems, street
cleaning services, fire and police protection services, public transit
services, and other public utilities associated with urban areas and
normally not associated with rural areas.
(19) "Urban growth" refers to growth that makes intensive use of
land for the location of buildings, structures, and impermeable
surfaces to such a degree as to be incompatible with the primary use of
land for the production of food, other agricultural products, or fiber,
or the extraction of mineral resources, rural uses, rural development,
and natural resource lands designated pursuant to RCW 36.70A.170. A
pattern of more intensive rural development, as provided in RCW
36.70A.070(5)(d), is not urban growth. When allowed to spread over
wide areas, urban growth typically requires urban governmental
services. "Characterized by urban growth" refers to land having urban
growth located on it, or to land located in relationship to an area
with urban growth on it as to be appropriate for urban growth.
(20) "Urban growth areas" means those areas designated by a county
pursuant to RCW 36.70A.110.
(21) "Wetland" or "wetlands" means areas that are inundated or
saturated by surface water or groundwater at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas. Wetlands do not include those artificial wetlands
intentionally created from nonwetland sites, including, but not limited
to, irrigation and drainage ditches, grass-lined swales, canals,
detention facilities, wastewater treatment facilities, farm ponds, and
landscape amenities, or those wetlands created after July 1, 1990, that
were unintentionally created as a result of the construction of a road,
street, or highway. Wetlands may include those artificial wetlands
intentionally created from nonwetland areas created to mitigate
conversion of wetlands.
Sec. 3 RCW 36.70A.280 and 2008 c 289 s 5 are each amended to read
as follows:
(1) A growth management hearings board shall hear and determine
only those petitions alleging either:
(a) That, except as provided otherwise by this subsection, a state
agency, county, or city planning under this chapter is not in
compliance with the requirements of this chapter((, chapter 90.58 RCW
as it relates to the adoption of shoreline master programs or
amendments thereto,)) or chapter 43.21C RCW as it relates to plans,
development regulations, or amendments, adopted under RCW 36.70A.040
((or chapter 90.58 RCW)). Nothing in this subsection authorizes a
board to hear petitions alleging noncompliance with RCW 36.70A.5801; or
(b) That the twenty-year growth management planning population
projections adopted by the office of financial management pursuant to
RCW 43.62.035 should be adjusted.
(2) A petition may be filed only by: (a) The state, or a county or
city that plans under this chapter; (b) a person who has participated
orally or in writing before the county or city regarding the matter on
which a review is being requested; (c) a person who is certified by the
governor within sixty days of filing the request with the board; or (d)
a person qualified pursuant to RCW 34.05.530.
(3) For purposes of this section "person" means any individual,
partnership, corporation, association, state agency, governmental
subdivision or unit thereof, or public or private organization or
entity of any character.
(4) To establish participation standing under subsection (2)(b) of
this section, a person must show that his or her participation before
the county or city was reasonably related to the person's issue as
presented to the board.
(5) When considering a possible adjustment to a growth management
planning population projection prepared by the office of financial
management, a board shall consider the implications of any such
adjustment to the population forecast for the entire state.
The rationale for any adjustment that is adopted by a board must be
documented and filed with the office of financial management within ten
working days after adoption.
If adjusted by a board, a county growth management planning
population projection shall only be used for the planning purposes set
forth in this chapter and shall be known as a "board adjusted
population projection". None of these changes shall affect the
official state and county population forecasts prepared by the office
of financial management, which shall continue to be used for state
budget and planning purposes.
Sec. 4 RCW 36.70A.290 and 1997 c 429 s 12 are each amended to
read as follows:
(1) All requests for review to a growth management hearings board
shall be initiated by filing a petition that includes a detailed
statement of issues presented for resolution by the board. The board
shall render written decisions articulating the basis for its holdings.
The board shall not issue advisory opinions on issues not presented to
the board in the statement of issues, as modified by any prehearing
order.
(2) All petitions relating to whether or not an adopted
comprehensive plan, development regulation, or permanent amendment
thereto, is in compliance with the goals and requirements of this
chapter or chapter ((90.58 or)) 43.21C RCW must be filed within sixty
days after publication by the legislative bodies of the county or city.
(a) ((Except as provided in (c) of this subsection,)) The date of
publication for a city shall be the date the city publishes the
ordinance, or summary of the ordinance, adopting the comprehensive plan
or development regulations, or amendment thereto, as is required to be
published.
(b) Promptly after adoption, a county shall publish a notice that
it has adopted the comprehensive plan or development regulations, or
amendment thereto.
((Except as provided in (c) of this subsection,)) For purposes of
this section the date of publication for a county shall be the date the
county publishes the notice that it has adopted the comprehensive plan
or development regulations, or amendment thereto.
(((c) For local governments planning under RCW 36.70A.040, promptly
after approval or disapproval of a local government's shoreline master
program or amendment thereto by the department of ecology as provided
in RCW 90.58.090, the local government shall publish a notice that the
shoreline master program or amendment thereto has been approved or
disapproved by the department of ecology. For purposes of this
section, the date of publication for the adoption or amendment of a
shoreline master program is the date the local government publishes
notice that the shoreline master program or amendment thereto has been
approved or disapproved by the department of ecology.))
(3) Unless the board dismisses the petition as frivolous or finds
that the person filing the petition lacks standing, or the parties have
filed an agreement to have the case heard in superior court as provided
in RCW 36.70A.295, the board shall, within ten days of receipt of the
petition, set a time for hearing the matter.
(4) The board shall base its decision on the record developed by
the city, county, or the state and supplemented with additional
evidence if the board determines that such additional evidence would be
necessary or of substantial assistance to the board in reaching its
decision.
(5) The board, shall consolidate, when appropriate, all petitions
involving the review of the same comprehensive plan or the same
development regulation or regulations.
Sec. 5 RCW 36.70A.300 and 1997 c 429 s 14 are each amended to
read as follows:
(1) The board shall issue a final order that shall be based
exclusively on whether or not a state agency, county, or city is in
compliance with the requirements of this chapter((, chapter 90.58 RCW
as it relates to adoption or amendment of shoreline master programs,))
or chapter 43.21C RCW as it relates to adoption of plans, development
regulations, and amendments thereto, under RCW 36.70A.040 ((or chapter
90.58 RCW)).
(2)(a) Except as provided in (b) of this subsection, the final
order shall be issued within one hundred eighty days of receipt of the
petition for review, or, if multiple petitions are filed, within one
hundred eighty days of receipt of the last petition that is
consolidated.
(b) The board may extend the period of time for issuing a decision
to enable the parties to settle the dispute if additional time is
necessary to achieve a settlement, and (i) an extension is requested by
all parties, or (ii) an extension is requested by the petitioner and
respondent and the board determines that a negotiated settlement
between the remaining parties could resolve significant issues in
dispute. The request must be filed with the board not later than seven
days before the date scheduled for the hearing on the merits of the
petition. The board may authorize one or more extensions for up to
ninety days each, subject to the requirements of this section.
(3) In the final order, the board shall either:
(a) Find that the state agency, county, or city is in compliance
with the requirements of this chapter((, chapter 90.58 RCW as it
relates to the adoption or amendment of shoreline master programs,)) or
chapter 43.21C RCW as it relates to adoption of plans, development
regulations, and amendments thereto, under RCW 36.70A.040 ((or chapter
90.58 RCW)); or
(b) Find that the state agency, county, or city is not in
compliance with the requirements of this chapter((, chapter 90.58 RCW
as it relates to the adoption or amendment of shoreline master
programs,)) or chapter 43.21C RCW as it relates to adoption of plans,
development regulations, and amendments thereto, under RCW 36.70A.040
((or chapter 90.58 RCW)), in which case the board shall remand the
matter to the affected state agency, county, or city. The board shall
specify a reasonable time not in excess of one hundred eighty days, or
such longer period as determined by the board in cases of unusual scope
or complexity, within which the state agency, county, or city shall
comply with the requirements of this chapter. The board may require
periodic reports to the board on the progress the jurisdiction is
making towards compliance.
(4) Unless the board makes a determination of invalidity as
provided in RCW 36.70A.302, a finding of noncompliance and an order of
remand shall not affect the validity of comprehensive plans and
development regulations during the period of remand.
(5) Any party aggrieved by a final decision of the hearings board
may appeal the decision to superior court as provided in RCW 34.05.514
or 36.01.050 within thirty days of the final order of the board.
Sec. 6 RCW 36.70A.320 and 1997 c 429 s 20 are each amended to
read as follows:
(1) ((Except as provided in subsection (5) of this section,))
Comprehensive plans and development regulations, and amendments
thereto, adopted under this chapter are presumed valid upon adoption.
(2) Except as otherwise provided in subsection (4) of this section,
the burden is on the petitioner to demonstrate that any action taken by
a state agency, county, or city under this chapter is not in compliance
with the requirements of this chapter.
(3) In any petition under this chapter, the board, after full
consideration of the petition, shall determine whether there is
compliance with the requirements of this chapter. In making its
determination, the board shall consider the criteria adopted by the
department under RCW 36.70A.190(4). The board shall find compliance
unless it determines that the action by the state agency, county, or
city is clearly erroneous in view of the entire record before the board
and in light of the goals and requirements of this chapter.
(4) A county or city subject to a determination of invalidity made
under RCW 36.70A.300 or 36.70A.302 has the burden of demonstrating that
the ordinance or resolution it has enacted in response to the
determination of invalidity will no longer substantially interfere with
the fulfillment of the goals of this chapter under the standard in RCW
36.70A.302(1).
(((5) The shoreline element of a comprehensive plan and the
applicable development regulations adopted by a county or city shall
take effect as provided in chapter 90.58 RCW.))
Sec. 7 RCW 90.58.030 and 2007 c 328 s 1 are each amended to read
as follows:
As used in this chapter, unless the context otherwise requires, the
following definitions and concepts apply:
(1) Administration:
(a) "Department" means the department of ecology;
(b) "Director" means the director of the department of ecology;
(c) "Local government" means any county, incorporated city, or town
which contains within its boundaries any lands or waters subject to
this chapter;
(d) "Person" means an individual, partnership, corporation,
association, organization, cooperative, public or municipal
corporation, or agency of the state or local governmental unit however
designated;
(e) "((Hearing[s])) Hearings board" means the ((shoreline[s]))
shorelines hearings board established by this chapter.
(2) Geographical:
(a) "Extreme low tide" means the lowest line on the land reached by
a receding tide;
(b) "Ordinary high water mark" on all lakes, streams, and tidal
water is that mark that will be found by examining the bed and banks
and ascertaining where the presence and action of waters are so common
and usual, and so long continued in all ordinary years, as to mark upon
the soil a character distinct from that of the abutting upland, in
respect to vegetation as that condition exists on June 1, 1971, as it
may naturally change thereafter, or as it may change thereafter in
accordance with permits issued by a local government or the department:
PROVIDED, That in any area where the ordinary high water mark cannot be
found, the ordinary high water mark adjoining salt water shall be the
line of mean higher high tide and the ordinary high water mark
adjoining fresh water shall be the line of mean high water;
(c) "Shorelines of the state" are the total of all "shorelines" and
"shorelines of statewide significance" within the state;
(d) "Shorelines" means all of the water areas of the state,
including reservoirs, and their associated shorelands, together with
the lands underlying them; except (i) shorelines of statewide
significance; (ii) shorelines on segments of streams upstream of a
point where the mean annual flow is twenty cubic feet per second or
less and the wetlands associated with such upstream segments; and (iii)
shorelines on lakes less than twenty acres in size and wetlands
associated with such small lakes;
(e) "Shorelines of statewide significance" means the following
shorelines of the state:
(i) The area between the ordinary high water mark and the western
boundary of the state from Cape Disappointment on the south to Cape
Flattery on the north, including harbors, bays, estuaries, and inlets;
(ii) Those areas of Puget Sound and adjacent salt waters and the
Strait of Juan de Fuca between the ordinary high water mark and the
line of extreme low tide as follows:
(A) Nisqually Delta -- from DeWolf Bight to Tatsolo Point,
(B) Birch Bay -- from Point Whitehorn to Birch Point,
(C) Hood Canal -- from Tala Point to Foulweather Bluff,
(D) Skagit Bay and adjacent area -- from Brown Point to Yokeko Point,
and
(E) Padilla Bay -- from March Point to William Point;
(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and
adjacent salt waters north to the Canadian line and lying seaward from
the line of extreme low tide;
(iv) Those lakes, whether natural, artificial, or a combination
thereof, with a surface acreage of one thousand acres or more measured
at the ordinary high water mark;
(v) Those natural rivers or segments thereof as follows:
(A) Any west of the crest of the Cascade range downstream of a
point where the mean annual flow is measured at one thousand cubic feet
per second or more,
(B) Any east of the crest of the Cascade range downstream of a
point where the annual flow is measured at two hundred cubic feet per
second or more, or those portions of rivers east of the crest of the
Cascade range downstream from the first three hundred square miles of
drainage area, whichever is longer;
(vi) Those shorelands associated with (i), (ii), (iv), and (v) of
this subsection (2)(e);
(f)(i) "Shorelands" or "shoreland areas" means those lands
extending landward for two hundred feet in all directions as measured
on a horizontal plane from the ordinary high water mark; floodways and
contiguous floodplain areas landward two hundred feet from such
floodways; and all wetlands and river deltas associated with the
streams, lakes, and tidal waters which are subject to the provisions of
this chapter; the same to be designated as to location by the
department of ecology.
(((i))) (ii) Any county or city may determine that portion of a
one-hundred-year-flood plain to be included in its master program as
long as such portion includes, as a minimum, the floodway and the
adjacent land extending landward two hundred feet therefrom.
(((ii) Any city or county may also include in its master program
land necessary for buffers for critical areas, as defined in chapter
36.70A RCW, that occur within shorelines of the state, provided that
forest practices regulated under chapter 76.09 RCW, except conversions
to nonforest land use, on lands subject to the provisions of this
subsection (2)(f)(ii) are not subject to additional regulations under
this chapter;))
(g) "Floodway" means the area, as identified in a master program,
that either: (i) Has been established in federal emergency management
agency flood insurance rate maps or floodway maps; or (ii) consists of
those portions of a river valley lying streamward from the outer limits
of a watercourse upon which flood waters are carried during periods of
flooding that occur with reasonable regularity, although not
necessarily annually, said floodway being identified, under normal
condition, by changes in surface soil conditions or changes in types or
quality of vegetative ground cover condition, topography, or other
indicators of flooding that occurs with reasonable regularity, although
not necessarily annually. Regardless of the method used to identify
the floodway, the floodway shall not include those lands that can
reasonably be expected to be protected from flood waters by flood
control devices maintained by or maintained under license from the
federal government, the state, or a political subdivision of the state;
(h) "Wetlands" means areas that are inundated or saturated by
surface water or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
Wetlands do not include those artificial wetlands intentionally created
from nonwetland sites, including, but not limited to, irrigation and
drainage ditches, grass-lined swales, canals, detention facilities,
wastewater treatment facilities, farm ponds, and landscape amenities,
or those wetlands created after July 1, 1990, that were unintentionally
created as a result of the construction of a road, street, or highway.
Wetlands may include those artificial wetlands intentionally created
from nonwetland areas to mitigate the conversion of wetlands.
(3) Procedural terms:
(a) "Guidelines" means those standards adopted to implement the
policy of this chapter for regulation of use of the shorelines of the
state prior to adoption of master programs. Such standards shall also
provide criteria to local governments and the department in developing
master programs;
(b) "Master program" shall mean the comprehensive use plan for a
described area, and the use regulations together with maps, diagrams,
charts, or other descriptive material and text, a statement of desired
goals, and standards developed in accordance with the policies
enunciated in RCW 90.58.020;
(c) "State master program" is the cumulative total of all adopted
master programs ((approved or adopted by the department of ecology));
(d) "Development" means a use consisting of the construction or
exterior alteration of structures; dredging; drilling; dumping;
filling; removal of any sand, gravel, or minerals; bulkheading; driving
of piling; placing of obstructions; or any project of a permanent or
temporary nature which interferes with the normal public use of the
surface of the waters overlying lands subject to this chapter at any
state of water level;
(e) "Substantial development" shall mean any development of which
the total cost or fair market value exceeds five thousand dollars, or
any development which materially interferes with the normal public use
of the water or shorelines of the state. The dollar threshold
established in this subsection (3)(e) must be adjusted for inflation by
the office of financial management every five years, beginning July 1,
2007, based upon changes in the consumer price index during that time
period. "Consumer price index" means, for any calendar year, that
year's annual average consumer price index, Seattle, Washington area,
for urban wage earners and clerical workers, all items, compiled by the
bureau of labor and statistics, United States department of labor. The
office of financial management must calculate the new dollar threshold
and transmit it to the office of the code reviser for publication in
the Washington State Register at least one month before the new dollar
threshold is to take effect. The following shall not be considered
substantial developments for the purpose of this chapter:
(i) Normal maintenance or repair of existing structures or
developments, including damage by accident, fire, or elements;
(ii) Construction of the normal protective bulkhead common to
single family residences;
(iii) Emergency construction necessary to protect property from
damage by the elements;
(iv) Construction and practices normal or necessary for farming,
irrigation, and ranching activities, including agricultural service
roads and utilities on shorelands, and the construction and maintenance
of irrigation structures including but not limited to head gates,
pumping facilities, and irrigation channels. A feedlot of any size,
all processing plants, other activities of a commercial nature,
alteration of the contour of the shorelands by leveling or filling
other than that which results from normal cultivation, shall not be
considered normal or necessary farming or ranching activities. A
feedlot shall be an enclosure or facility used or capable of being used
for feeding livestock hay, grain, silage, or other livestock feed, but
shall not include land for growing crops or vegetation for livestock
feeding and/or grazing, nor shall it include normal livestock wintering
operations;
(v) Construction or modification of navigational aids such as
channel markers and anchor buoys;
(vi) Construction on shorelands by an owner, lessee, or contract
purchaser of a single family residence for his own use or for the use
of his or her family, which residence does not exceed a height of
thirty-five feet above average grade level and which meets all
requirements of the state agency or local government having
jurisdiction thereof, other than requirements imposed pursuant to this
chapter;
(vii) Construction of a dock, including a community dock, designed
for pleasure craft only, for the private noncommercial use of the
owner, lessee, or contract purchaser of single and multiple family
residences. This exception applies if either: (A) In salt waters, the
fair market value of the dock does not exceed two thousand five hundred
dollars; or (B) in fresh waters, the fair market value of the dock does
not exceed ten thousand dollars, but if subsequent construction having
a fair market value exceeding two thousand five hundred dollars occurs
within five years of completion of the prior construction, the
subsequent construction shall be considered a substantial development
for the purpose of this chapter;
(viii) Operation, maintenance, or construction of canals,
waterways, drains, reservoirs, or other facilities that now exist or
are hereafter created or developed as a part of an irrigation system
for the primary purpose of making use of system waters, including
return flow and artificially stored groundwater for the irrigation of
lands;
(ix) The marking of property lines or corners on state owned lands,
when such marking does not significantly interfere with normal public
use of the surface of the water;
(x) Operation and maintenance of any system of dikes, ditches,
drains, or other facilities existing on September 8, 1975, which were
created, developed, or utilized primarily as a part of an agricultural
drainage or diking system;
(xi) Site exploration and investigation activities that are
prerequisite to preparation of an application for development
authorization under this chapter, if:
(A) The activity does not interfere with the normal public use of
the surface waters;
(B) The activity will have no significant adverse impact on the
environment including, but not limited to, fish, wildlife, fish or
wildlife habitat, water quality, and aesthetic values;
(C) The activity does not involve the installation of a structure,
and upon completion of the activity the vegetation and land
configuration of the site are restored to conditions existing before
the activity;
(D) A private entity seeking development authorization under this
section first posts a performance bond or provides other evidence of
financial responsibility to the local jurisdiction to ensure that the
site is restored to preexisting conditions; and
(E) The activity is not subject to the permit requirements of RCW
90.58.550;
(xii) The process of removing or controlling an aquatic noxious
weed, as defined in RCW 17.26.020, through the use of an herbicide or
other treatment methods applicable to weed control that are recommended
by a final environmental impact statement published by the department
of agriculture or the department jointly with other state agencies
under chapter 43.21C RCW.
Sec. 8 RCW 90.58.080 and 2007 c 170 s 1 are each amended to read
as follows:
(1) Local governments shall develop or amend a master program for
regulation of uses of the shorelines of the state consistent with the
required elements of the guidelines adopted by the department in
accordance with the schedule established by this section.
(2)(a) Subject to the provisions of subsections (5) and (6) of this
section, each local government subject to this chapter shall develop or
amend its master program for the regulation of uses of shorelines
within its jurisdiction according to the following schedule:
(i) On or before December 1, 2005, for the city of Port Townsend,
the city of Bellingham, the city of Everett, Snohomish county, and
Whatcom county;
(ii) On or before December 1, 2009, for King county and the cities
within King county greater in population than ten thousand;
(iii) Except as provided by (a)(i) and (ii) of this subsection, on
or before December 1, 2011, for Clallam, Clark, Jefferson, King,
Kitsap, Pierce, Snohomish, Thurston, and Whatcom counties and the
cities within those counties;
(iv) On or before December 1, 2012, for Cowlitz, Island, Lewis,
Mason, San Juan, Skagit, and Skamania counties and the cities within
those counties;
(v) On or before December 1, 2013, for Benton, Chelan, Douglas,
Grant, Kittitas, Spokane, and Yakima counties and the cities within
those counties; and
(vi) On or before December 1, 2014, for Adams, Asotin, Columbia,
Ferry, Franklin, Garfield, Grays Harbor, Klickitat, Lincoln, Okanogan,
Pacific, Pend Oreille, Stevens, Wahkiakum, Walla Walla, and Whitman
counties and the cities within those counties.
(b) Nothing in this subsection (2) shall preclude a local
government from developing or amending its master program prior to the
dates established by this subsection (2).
(3)(a) Following approval ((by the department)) of a new or amended
master program, local governments required to develop or amend master
programs on or before December 1, 2009, as provided by subsection
(2)(a)(i) and (ii) of this section, shall be deemed to have complied
with the schedule established by subsection (2)(a)(iii) of this section
and shall not be required to complete master program amendments until
seven years after the applicable dates established by subsection
(2)(a)(iii) of this section. Any jurisdiction listed in subsection
(2)(a)(i) of this section that has a new or amended master program
approved by the department on or after March 1, 2002, but before July
27, 2003, shall not be required to complete master program amendments
until seven years after the applicable date provided by subsection
(2)(a)(iii) of this section.
(b) Following approval by the department of a new or amended master
program, local governments choosing to develop or amend master programs
on or before December 1, 2009, shall be deemed to have complied with
the schedule established by subsection (2)(a)(iii) through (vi) of this
section and shall not be required to complete master program amendments
until seven years after the applicable dates established by subsection
(2)(a)(iii) through (vi) of this section.
(4) Local governments shall conduct a review of their master
programs at least once every seven years after the applicable dates
established by subsection (2)(a)(iii) through (vi) of this section.
Following the review required by this subsection (4), local governments
shall, if necessary, revise their master programs. The purpose of the
review is((:)) to assure that the master program complies with applicable
law and guidelines in effect at the time of the review((
(a); and)).
(b) To assure consistency of the master program with the local
government's comprehensive plan and development regulations adopted
under chapter 36.70A RCW, if applicable, and other local
requirements
(5) Local governments are encouraged to begin the process of
developing or amending their master programs early and are eligible for
grants from the department as provided by RCW 90.58.250, subject to
available funding. Except for those local governments listed in
subsection (2)(a)(i) and (ii) of this section, the deadline for
completion of the new or amended master programs shall be two years
after the date the grant is approved by the department. Subsequent
master program review dates shall not be altered by the provisions of
this subsection.
(6)(a) Grants to local governments for developing and amending
master programs pursuant to the schedule established by this section
shall be provided at least two years before the adoption dates
specified in subsection (2) of this section. To the extent possible,
the department shall allocate grants within the amount appropriated for
such purposes to provide reasonable and adequate funding to local
governments that have indicated their intent to develop or amend master
programs during the biennium according to the schedule established by
subsection (2) of this section. Any local government that applies for
but does not receive funding to comply with the provisions of
subsection (2) of this section may delay the development or amendment
of its master program until the following biennium.
(b) Local governments with delayed compliance dates as provided in
(a) of this subsection shall be the first priority for funding in
subsequent biennia, and the development or amendment compliance
deadline for those local governments shall be two years after the date
of grant approval.
(c) Failure of the local government to apply in a timely manner for
a master program development or amendment grant in accordance with the
requirements of the department shall not be considered a delay
resulting from the provisions of (a) of this subsection.
(7) Notwithstanding the provisions of this section, all local
governments subject to the requirements of this chapter that have not
developed or amended master programs on or after March 1, 2002, shall,
no later than December 1, 2014, develop or amend their master programs
to comply with guidelines adopted by the department after January 1,
2003.
(8) Local governments may be provided an additional year beyond the
deadlines in this section to complete their master program or
amendment. The department shall grant the request if it determines
that the local government is likely to adopt or amend its master
program within the additional year.
Sec. 9 RCW 90.58.090 and 2003 c 321 s 3 are each amended to read
as follows:
(1) A master program((, segment of a master program, or an
amendment to a master program shall become effective when approved by
the department)) or master program segment becomes effective upon final
adoption by the legislative authority of the applicable county or city.
(2)(a) Each county and city proposing adoption or amendment of a
master program or master program segment shall: (i) Notify the
department of its intent to adopt or amend the master program or master
program segment at least one hundred twenty days before final adoption;
and (ii) transmit a complete and accurate copy of its final proposal to
the department at least sixty days before final adoption.
(b) Each county and city that adopts or amends a master program or
master program segment shall transmit a complete and accurate copy of
its master program to the department within ten days of final adoption.
(3) State agencies, including the department, may provide
nonbinding comments to the county or city on the proposed master
program or master program segment before final adoption.
(4) Within the time period provided in RCW 90.58.080, each local
government shall have submitted a master program, either totally or by
segments, for all shorelines of the state within its jurisdiction to
the department for review ((and approval)).
(((2))) (5) Upon receipt of a proposed master program or amendment,
the department shall:
(a) Provide notice to and opportunity for written comment by all
interested parties of record as a part of the local government review
process for the proposal and to all persons, groups, and agencies that
have requested in writing notice of proposed master programs or
amendments generally or for a specific area, subject matter, or issue.
The comment period shall be at least thirty days, unless the department
determines that the level of complexity or controversy involved
supports a shorter period;
(b) In the department's discretion, conduct a public hearing during
the thirty-day comment period in the jurisdiction proposing the master
program or amendment;
(c) Within ((fifteen)) ten days after the close of public comment,
request the local government to review the issues identified by the
public, interested parties, groups, and agencies and provide a written
response as to how the proposal addresses the identified issues((;)). The county or city
has fifteen days to provide a response to the issues identified in
((
(d) Within thirty days after receipt of the local government
response pursuant to (c) of this subsection, make written findings and
conclusions regarding the consistency of the proposal with the policy
of RCW 90.58.020 and the applicable guidelines,(c) of this subsection, and either approve the proposal as submitted,
recommend specific changes necessary to make the proposal approvable,
or deny approval of the proposal in those instances where no alteration
of the proposal appears likely to be consistent with the policy of RCW
90.58.020 and the applicable guidelines. The written findings and
conclusions shall be provided to the local government, all interested
persons, parties, groups, and agencies of record on the proposal;)) this subsection (c).
(e) If the department recommends changes to the proposed master
program or amendment, within thirty days after the department mails the
written findings and conclusions to the local government, the local
government may:
(i) Agree to the proposed changes. The receipt by the department
of the written notice of agreement constitutes final action by the
department approving the amendment; or
(ii) Submit an alternative proposal. If, in the opinion of the
department, the alternative is consistent with the purpose and intent
of the changes originally submitted by the department and with this
chapter it shall approve the changes and provide written notice to all
recipients of the written findings and conclusions. If the department
determines the proposal is not consistent with the purpose and intent
of the changes proposed by the department, the department may resubmit
the proposal for public and agency review pursuant to this section or
reject the proposal.
(3) The department shall approve the segment of a master program
relating to shorelines unless it determines that the submitted segments
are not consistent with the policy of RCW 90.58.020 and the applicable
guidelines.
(4) The department shall approve the segment of a master program
relating to critical areas as defined by RCW 36.70A.030(5) provided the
master program segment is consistent with RCW 90.58.020 and applicable
shoreline guidelines, and if the segment provides a level of protection
of critical areas at least equal to that provided by the local
government's critical areas ordinances adopted and thereafter amended
pursuant to RCW 36.70A.060(2).
(5) The department shall approve those segments of the master
program relating to shorelines of statewide significance only after
determining the program provides the optimum implementation of the
policy of this chapter to satisfy the statewide interest. If the
department does not approve a segment of a local government master
program relating to a shoreline of statewide significance, the
department may develop and by rule adopt an alternative to the local
government's proposal
(6) In the event a local government has not complied with the
requirements of RCW 90.58.070 it may thereafter upon written notice to
the department elect to adopt a master program for the shorelines
within its jurisdiction, in which event it shall comply with the
provisions established by this chapter for the adoption of a master
program for such shorelines.
Upon ((approval)) adoption of such master program by the
((department)) county or city it shall supersede ((such)) the
previously adopted master program ((as may have been adopted by the
department)) for such shorelines.
(7) ((A master program or amendment to a master program takes
effect when and in such form as approved or adopted by the
department.)) Shoreline master programs that were adopted by the
department prior to July 22, 1995, in accordance with the provisions of
this section then in effect, shall be deemed approved by the department
in accordance with the provisions of this section that became effective
on that date. The department shall maintain a record of each master
program, the action taken on any proposal for adoption or amendment of
the master program, and any appeal of the department's action. ((The
department's approved document of record constitutes the official
master program.))
Sec. 10 RCW 90.58.100 and 2009 c 421 s 9 are each amended to read
as follows:
(1) The master programs provided for in this chapter((, when
adopted or approved by the department)) shall constitute use
regulations for the various shorelines of the state. In preparing the
master programs, and any amendments thereto, the department and local
governments shall to the extent feasible:
(a) Utilize a systematic interdisciplinary approach which will
insure the integrated use of the natural and social sciences and the
environmental design arts;
(b) Consult with and obtain the comments of any federal, state,
regional, or local agency having any special expertise with respect to
any environmental impact;
(c) Consider all plans, studies, surveys, inventories, and systems
of classification made or being made by federal, state, regional, or
local agencies, by private individuals, or by organizations dealing
with pertinent shorelines of the state;
(d) Conduct or support such further research, studies, surveys, and
interviews as are deemed necessary;
(e) Utilize all available information regarding hydrology,
geography, topography, ecology, economics, and other pertinent data;
and
(f) Employ, when feasible, all appropriate, modern scientific data
processing and computer techniques to store, index, analyze, and manage
the information gathered.
(2) The master programs shall include, when appropriate, the
following:
(a) An economic development element for the location and design of
industries, projects of statewide significance, transportation
facilities, port facilities, tourist facilities, commerce and other
developments that are particularly dependent on their location on or
use of the shorelines of the state;
(b) A public access element making provision for public access to
publicly owned areas;
(c) A recreational element for the preservation and enlargement of
recreational opportunities, including but not limited to parks,
tidelands, beaches, and recreational areas;
(d) A circulation element consisting of the general location and
extent of existing and proposed major thoroughfares, transportation
routes, terminals, and other public utilities and facilities, all
correlated with the shoreline use element;
(e) A use element which considers the proposed general distribution
and general location and extent of the use on shorelines and adjacent
land areas for housing, business, industry, transportation,
agriculture, natural resources, recreation, education, public buildings
and grounds, and other categories of public and private uses of the
land;
(f) A conservation element for the preservation of natural
resources, including but not limited to scenic vistas, aesthetics, and
vital estuarine areas for fisheries and wildlife protection;
(g) An historic, cultural, scientific, and educational element for
the protection and restoration of buildings, sites, and areas having
historic, cultural, scientific, or educational values;
(h) An element that gives consideration to the statewide interest
in the prevention and minimization of flood damages; and
(i) Any other element deemed appropriate or necessary to effectuate
the policy of this chapter.
(3) The master programs shall include such map or maps, descriptive
text, diagrams and charts, or other descriptive material as are
necessary to provide for ease of understanding.
(4) Master programs will reflect that state-owned shorelines of the
state are particularly adapted to providing wilderness beaches,
ecological study areas, and other recreational activities for the
public and will give appropriate special consideration to same.
(5) Each master program shall contain provisions to allow for the
varying of the application of use regulations of the program, including
provisions for permits for conditional uses and variances, to insure
that strict implementation of a program will not create unnecessary
hardships or thwart the policy enumerated in RCW 90.58.020. Any such
varying shall be allowed only if extraordinary circumstances are shown
and the public interest suffers no substantial detrimental effect. The
concept of this subsection shall be incorporated in the rules adopted
by the department relating to the establishment of a permit system as
provided in RCW 90.58.140(3).
(6) Each master program shall contain standards governing the
protection of single family residences and appurtenant structures
against damage or loss due to shoreline erosion. The standards shall
govern the issuance of substantial development permits for shoreline
protection, including structural methods such as construction of
bulkheads, and nonstructural methods of protection. The standards
shall provide for methods which achieve effective and timely protection
against loss or damage to single family residences and appurtenant
structures due to shoreline erosion. ((The standards shall provide a
preference for permit issuance for measures to protect single family
residences occupied prior to January 1, 1992, where the proposed
measure is designed to minimize harm to the shoreline natural
environment.))
(7) Each master program should, to the maximum extent practicable,
seek to minimize the creation of nonconforming uses and areas.
Sec. 11 RCW 90.58.110 and 1971 ex.s. c 286 s 11 are each amended
to read as follows:
(1) Whenever it shall appear to the director that a master program
should be developed for a region of the shorelines of the state which
includes lands and waters located in two or more adjacent local
government jurisdictions, the director shall designate such region and
notify the appropriate units of local government thereof. It shall be
the duty of the notified units to develop cooperatively an inventory
and master program in accordance with and within the time provided in
RCW 90.58.080.
(2) ((At the discretion of the department,)) A local government
master program may be adopted in segments applicable to particular
areas so that immediate attention may be given to those areas of the
shorelines of the state in most need of a use regulation.
Sec. 12 RCW 90.58.120 and 1995 c 347 s 308 are each amended to
read as follows:
All rules, regulations, designations, and guidelines, issued by the
department((, and master programs and amendments adopted by the
department pursuant to RCW 90.58.070(2) or 90.58.090(4))) shall be
adopted or approved in accordance with the provisions of RCW 34.05.310
through 34.05.395 insofar as such provisions are not inconsistent with
the provisions of this chapter. In addition:
(1) Prior to the adoption by ((the department)) a county or city of
a master program, or portion thereof pursuant to RCW ((90.58.070(2)
or)) 90.58.090(((4))), or the adoption of a master program or portion
thereof pursuant to RCW 90.58.070(2), at least one public hearing shall
be held in each county affected by a program or portion thereof for the
purpose of obtaining the views and comments of the public. Notice of
each such hearing shall be published at least once in each of the three
weeks immediately preceding the hearing in one or more newspapers of
general circulation in the county in which the hearing is to be held.
(2) All guidelines, regulations, designations, or master programs
adopted or approved under this chapter shall be available for public
inspection at the office of the department or the appropriate county
and city. The terms "adopt" and "approve" for purposes of this
section, shall include modifications and rescission of guidelines.
Sec. 13 RCW 90.58.140 and 1995 c 347 s 309 are each amended to
read as follows:
(1) A development shall not be undertaken on the shorelines of the
state unless it is consistent with the policy of this chapter and,
after adoption or approval, as appropriate, the applicable guidelines,
rules, or master program.
(2) A substantial development shall not be undertaken on shorelines
of the state without first obtaining a permit from the government
entity having administrative jurisdiction under this chapter.
A permit shall be granted((:)) only when the development proposed is
consistent with((
(a) From June 1, 1971, until such time as an applicable master
program has become effective,: (i) The policy of RCW 90.58.020; and (ii) after
their adoption, the guidelines and rules of the department; and (iii)
so far as can be ascertained, the master program being developed for
the area;)) the applicable master program, guidelines and rules
of the department, and this chapter.
(b) After adoption or approval, as appropriate, by the department
of an applicable master program, only when the development proposed is
consistent with
(3) The local government shall establish a program, consistent with
rules adopted by the department, for the administration and enforcement
of the permit system provided in this section. The administration of
the system so established shall be performed exclusively by the local
government.
(4) Except as otherwise specifically provided in subsection (11) of
this section, the local government shall require notification of the
public of all applications for permits governed by any permit system
established pursuant to subsection (3) of this section by ensuring that
notice of the application is given by at least one of the following
methods:
(a) Mailing of the notice to the latest recorded real property
owners as shown by the records of the county assessor within at least
three hundred feet of the boundary of the property upon which the
substantial development is proposed;
(b) Posting of the notice in a conspicuous manner on the property
upon which the project is to be constructed; or
(c) Any other manner deemed appropriate by local authorities to
accomplish the objectives of reasonable notice to adjacent landowners
and the public.
The notices shall include a statement that any person desiring to
submit written comments concerning an application, or desiring to
receive notification of the final decision concerning an application as
expeditiously as possible after the issuance of the decision, may
submit the comments or requests for decisions to the local government
within thirty days of the last date the notice is to be published
pursuant to this subsection. The local government shall forward, in a
timely manner following the issuance of a decision, a copy of the
decision to each person who submits a request for the decision.
If a hearing is to be held on an application, notices of such a
hearing shall include a statement that any person may submit oral or
written comments on an application at the hearing.
(5) The system shall include provisions to assure that construction
pursuant to a permit will not begin or be authorized until twenty-one
days from the date the permit decision was filed as provided in
subsection (6) of this section; or until all review proceedings are
terminated if the proceedings were initiated within twenty-one days
from the date of filing as defined in subsection (6) of this section
except as follows:
(a) In the case of any permit issued to the state of Washington,
department of transportation, for the construction and modification of
SR 90 (I-90) on or adjacent to Lake Washington, the construction may
begin after thirty days from the date of filing, and the permits are
valid until December 31, 1995;
(b) Construction may be commenced no sooner than thirty days after
the date of the appeal of the board's decision is filed if a permit is
granted by the local government and (i) the granting of the permit is
appealed to the shorelines hearings board within twenty-one days of the
date of filing, (ii) the hearings board approves the granting of the
permit by the local government or approves a portion of the substantial
development for which the local government issued the permit, and (iii)
an appeal for judicial review of the hearings board decision is filed
pursuant to chapter 34.05 RCW. The appellant may request, within ten
days of the filing of the appeal with the court, a hearing before the
court to determine whether construction pursuant to the permit approved
by the hearings board or to a revised permit issued pursuant to the
order of the hearings board should not commence. If, at the conclusion
of the hearing, the court finds that construction pursuant to such a
permit would involve a significant, irreversible damaging of the
environment, the court shall prohibit the permittee from commencing the
construction pursuant to the approved or revised permit until all
review proceedings are final. Construction pursuant to a permit
revised at the direction of the hearings board may begin only on that
portion of the substantial development for which the local government
had originally issued the permit, and construction pursuant to such a
revised permit on other portions of the substantial development may not
begin until after all review proceedings are terminated. In such a
hearing before the court, the burden of proving whether the
construction may involve significant irreversible damage to the
environment and demonstrating whether such construction would or would
not be appropriate is on the appellant;
(c) If the permit is for a substantial development meeting the
requirements of subsection (11) of this section, construction pursuant
to that permit may not begin or be authorized until twenty-one days
from the date the permit decision was filed as provided in subsection
(6) of this section.
If a permittee begins construction pursuant to subsections (a),
(b), or (c) of this subsection, the construction is begun at the
permittee's own risk. If, as a result of judicial review, the courts
order the removal of any portion of the construction or the restoration
of any portion of the environment involved or require the alteration of
any portion of a substantial development constructed pursuant to a
permit, the permittee is barred from recovering damages or costs
involved in adhering to such requirements from the local government
that granted the permit, the hearings board, or any appellant or
intervener.
(6) Any decision on an application for a permit under the authority
of this section, whether it is an approval or a denial, shall,
concurrently with the transmittal of the ruling to the applicant, be
filed with the department and the attorney general. With regard to a
permit other than a permit governed by subsection (10) of this section,
"date of filing" as used herein means the date of actual receipt by the
department. With regard to a permit for a variance or a conditional
use, "date of filing" means the date a decision of the department
rendered on the permit pursuant to subsection (10) of this section is
transmitted by the department to the local government. The department
shall notify in writing the local government and the applicant of the
date of filing.
(7) Applicants for permits under this section have the burden of
proving that a proposed substantial development is consistent with the
criteria that must be met before a permit is granted. In any review of
the granting or denial of an application for a permit as provided in
RCW 90.58.180 (1) and (2), the person requesting the review has the
burden of proof.
(8) Any permit may, after a hearing with adequate notice to the
permittee and the public, be rescinded by the issuing authority upon
the finding that a permittee has not complied with conditions of a
permit. If the department is of the opinion that noncompliance exists,
the department shall provide written notice to the local government and
the permittee. If the department is of the opinion that the
noncompliance continues to exist thirty days after the date of the
notice, and the local government has taken no action to rescind the
permit, the department may petition the hearings board for a rescission
of the permit upon written notice of the petition to the local
government and the permittee if the request by the department is made
to the hearings board within fifteen days of the termination of the
thirty-day notice to the local government.
(9) The holder of a certification from the governor pursuant to
chapter 80.50 RCW shall not be required to obtain a permit under this
section.
(10) Any permit for a variance or a conditional use by local
government under ((approved)) adopted master programs must be
((submitted)) transmitted to the department ((for its approval or
disapproval)).
(11)(a) An application for a substantial development permit for a
limited utility extension or for the construction of a bulkhead or
other measures to protect a single family residence and its appurtenant
structures from shoreline erosion shall be subject to the following
procedures:
(i) The public comment period under subsection (4) of this section
shall be twenty days. The notice provided under subsection (4) of this
section shall state the manner in which the public may obtain a copy of
the local government decision on the application no later than two days
following its issuance;
(ii) The local government shall issue its decision to grant or deny
the permit within twenty-one days of the last day of the comment period
specified in (i) of this subsection; and
(iii) If there is an appeal of the decision to grant or deny the
permit to the local government legislative authority, the appeal shall
be finally determined by the legislative authority within thirty days.
(b) For purposes of this section, a limited utility extension means
the extension of a utility service that:
(i) Is categorically exempt under chapter 43.21C RCW for one or
more of the following: Natural gas, electricity, telephone, water, or
sewer;
(ii) Will serve an existing use in compliance with this chapter;
and
(iii) Will not extend more than twenty-five hundred linear feet
within the shorelines of the state.
Sec. 14 RCW 90.58.180 and 2003 c 393 s 22 are each amended to
read as follows:
(1) Any person aggrieved by the granting, denying, or rescinding of
a permit on shorelines of the state pursuant to RCW 90.58.140 may,
except as otherwise provided in chapter 43.21L RCW, seek review from
the shorelines hearings board by filing a petition for review within
twenty-one days of the date of filing as defined in RCW 90.58.140(6).
Within seven days of the filing of any petition for review with the
board as provided in this section pertaining to a final decision of a
local government, the petitioner shall serve copies of the petition on
the department, the office of the attorney general, and the local
government. The department and the attorney general may intervene to
protect the public interest and insure that the provisions of this
chapter are complied with at any time within fifteen days from the date
of the receipt by the department or the attorney general of a copy of
the petition for review filed pursuant to this section. The shorelines
hearings board shall schedule review proceedings on the petition for
review without regard as to whether the period for the department or
the attorney general to intervene has or has not expired.
(2) The ((department or the)) attorney general may obtain review of
any final decision granting a permit, or granting or denying an
application for a permit issued by a local government by filing a
written petition with the shorelines hearings board and the appropriate
local government within twenty-one days from the date the final
decision was filed as provided in RCW 90.58.140(6).
(3) The review proceedings authorized in subsections (1) and (2) of
this section are subject to the provisions of chapter 34.05 RCW
pertaining to procedures in adjudicative proceedings. Judicial review
of such proceedings of the shorelines hearings board is governed by
chapter 34.05 RCW. The board shall issue its decision on the appeal
authorized under subsections (1) and (2) of this section within one
hundred eighty days after the date the petition is filed with the board
or a petition to intervene is filed by the department or the attorney
general, whichever is later. The time period may be extended by the
board for a period of thirty days upon a showing of good cause or may
be waived by the parties.
(4) Any person may appeal any rules, regulations, or guidelines
adopted or approved by the department, or the adoption or amendment of
a shoreline master program approved by a county or city, within thirty
days of the date of the adoption or approval. The board shall make a
final decision within sixty days following the hearing held thereon.
(5) The board shall find the rule, regulation, ((or)) guideline,
master program, or master program amendment to be valid and enter a
final decision to that effect unless it determines that the rule,
regulation, ((or)) guideline, master program, or master program
amendment:
(a) Is clearly erroneous in light of the policy of this chapter; or
(b) Constitutes an implementation of this chapter in violation of
constitutional or statutory provisions; or
(c) Is arbitrary and capricious; or
(d) Was developed without fully considering and evaluating all
material submitted to the department during public review and comment;
or
(e) Was not adopted in accordance with required procedures.
(6) If the board makes a determination under subsection (5)(a)
through (e) of this section, it shall enter a final decision declaring
the rule, regulation, ((or)) guideline, master program, or master
program amendment invalid, remanding the rule, regulation, ((or))
guideline, master program, or master program amendment to the
department or adopting county or city with a statement of the reasons
in support of the determination, and directing the department or
adopting county or city to adopt, after a thorough consultation with
((the)) affected ((local government)) and any other interested
((party)) parties, a new rule, regulation, ((or)) guideline, master
program, or master program amendment that is consistent with the
board's decision.
(7) A decision of the board on the validity of a rule, regulation,
((or)) guideline, master program, or master program amendment shall be
subject to review in superior court, if authorized pursuant to chapter
34.05 RCW. A petition for review of the decision of the shorelines
hearings board on a rule, regulation, ((or)) guideline, master program,
or master program amendment shall be filed within thirty days after the
date of final decision by the shorelines hearings board.
Sec. 15 RCW 90.58.190 and 2003 c 321 s 4 are each amended to read
as follows:
(1) ((The appeal of the department's decision to adopt a master
program or amendment pursuant to RCW 90.58.070(2) or 90.58.090(5) is
governed by RCW 34.05.510 through 34.05.598.)) In an appeal relating to shorelines of the state, the
shorelines hearings board shall review the proposed master program or
master program amendment and, after full consideration of the
presentations of the local government ((
(2)(a) The department's decision to approve, reject, or modify a
proposed master program or amendment adopted by a local government
planning under RCW 36.70A.040 shall be appealed to the growth
management hearings board with jurisdiction over the local government.
The appeal shall be initiated by filing a petition as provided in RCW
36.70A.250 through 36.70A.320.
(b) If the appeal to the growth management hearings board concerns
shorelines, the growth management hearings board shall review the
proposed master program or amendment solely for compliance with the
requirements of this chapter, the policy of RCW 90.58.020 and the
applicable guidelines, the internal consistency provisions of RCW
36.70A.070, 36.70A.040(4), 35.63.125, and 35A.63.105, and chapter
43.21C RCW as it relates to the adoption of master programs and
amendments under chapter 90.58 RCW.
(c) If the appeal to the growth management hearings board concerns
a shoreline of statewide significance, the board shall uphold the
decision by the department unless the board, by clear and convincing
evidence, determines that the decision of the department is
inconsistent with the policy of RCW 90.58.020 and the applicable
guidelines.
(d) The appellant has the burden of proof in all appeals to the
growth management hearings board under this subsection.
(e) Any party aggrieved by a final decision of a growth management
hearings board under this subsection may appeal the decision to
superior court as provided in RCW 36.70A.300.
(3)(a) The department's decision to approve, reject, or modify a
proposed master program or master program amendment by a local
government not planning under RCW 36.70A.040 shall be appealed to the
shorelines hearings board by filing a petition within thirty days of
the date of the department's written notice to the local government of
the department's decision to approve, reject, or modify a proposed
master program or master program amendment as provided in RCW
90.58.090(2).
(b)and the department)), shall
determine the validity of the local government's master program or
amendment in light of the policy of RCW 90.58.020 and the applicable
guidelines.
(((c) In an appeal relating to shorelines of statewide
significance, the shorelines hearings board shall uphold the decision
by the department unless the board determines, by clear and convincing
evidence that the decision of the department is inconsistent with the
policy of RCW 90.58.020 and the applicable guidelines.)) (2) Review by the shorelines hearings board shall be
considered an adjudicative proceeding under chapter 34.05 RCW, the
Administrative Procedure Act. The aggrieved local government shall
have the burden of proof in all such reviews.
(d)
(((e))) (3) Whenever possible, the review by the shorelines
hearings board shall be heard within the county where the land subject
to the proposed master program or master program amendment is primarily
located. The department and any local government aggrieved by a final
decision of the hearings board may appeal the decision to superior
court as provided in chapter 34.05 RCW.
(4) A master program amendment shall become effective after ((the
approval of the department or after)) the decision of the shorelines
hearings board to uphold the master program or master program
amendment, provided that the board may remand the master program or
master program adjustment to the local government ((or the department))
for modification prior to the final adoption of the master program or
master program amendment.
(5) The appellant has the burden of proof in all appeals under this
section.
NEW SECTION. Sec. 16 A new section is added to chapter 36.70A
RCW to read as follows:
Shorelines of the state, including critical areas designated under
this chapter that are located on shorelines of the state, are governed
solely by chapter 90.58 RCW and applicable guidelines and are not
subject to this chapter.
Development regulations adopted under this chapter prior to the
effective date of this section that apply to critical areas in
shorelines of the state have no applicability in shorelines of the
state and may not be enforced within such areas.
NEW SECTION. Sec. 17 The following acts or parts of acts are
each repealed:
(1) RCW 36.70A.480 (Shorelines of the state) and 2003 c 321 s 5 &
1995 c 347 s 104; and
(2) RCW 36.70A.481 (Construction -- Chapter 347, Laws of 1995) and
1995 c 382 s 13.