SENATE BILL REPORT

SB 6642

BYSenators Craswell and Smitherman

Clarifying procedures for reviewing shoreline permits.

Senate Committee on Environment & Natural Resources

Senate Hearing Date(s):February 3, 1988; February 5, 1988

Senate Staff:Gary Wilburn (786-7453)

AS OF FEBRUARY 10, 1988

BACKGROUND:

Under the Shoreline Management Act, a permit must be obtained from the local government with jurisdiction for any development having a total cost or fair market value over $2,500, or which interferes with the normal public use of the waters or shorelines of the state.  Any person aggrieved by the grant, denial or rescission of a permit may seek review from the Shoreline Hearings Board.  The Board may review the local government action if the appeal is certified by either the Department of Ecology or the Attorney General.

Review by the board is to be conducted pursuant to the procedures for contested cases under the Administrative Procedure Act.  In any contested case all parties are to be afforded an opportunity for a hearing in which they may respond and present evidence and argument on all issues involved, including the right to cross-examine all witnesses and present rebuttal evidence. Judicial review of decisions of the board shall be confined to the record, as provided by the Administrative Procedure Act.

The Shoreline Hearings Board was created by the Shoreline Management Act of 1971 to hear and decide all appeals from local government decisions upon shoreline permits and master programs, and decisions of the Department of Ecology regarding rules, guidelines, master programs and civil penalties.  The board is a six-member body consisting of the three members of the Pollution Control Hearings Board, a member chosen by the Washington Association of Counties, a member chosen by the Association of Washington Cities, and the Public Lands Commissioner or his designee.

Substantial development permit applications for floating aquaculture operations in Puget Sound waters are increasing.  In several cases permits were denied by the jurisdictional local government, and the board reversed the decision after hearing the case and developing a new administrative record.

SUMMARY:

For purposes of the Shoreline Management Act, "floating aquaculture" is defined as the farming or culture of food fish, shellfish and other aquatic plants and animals which may require floating pens, shellfish rafts or like structures.  In cases in which a local government holds a hearing upon a permit application involving floating aquaculture, the Shoreline Hearings Board shall confine its review to the record developed in the local government hearing and shall not review the case de novo.  The board may allow additional testimony if the board determines that it could not have been available at the local government hearing.

If additional testimony is allowed, the board is to remand the case to the local government for rehearing.  The party requesting introduction of new testimony is to make it available to all interested parties at the time the request is made.  Board review of floating aquaculture permit decisions is to be limited to determining whether the local government decisions were (1) in accordance with required procedures; (2) arbitrary and capricious; or (3) inconsistent with the intent of the Shoreline Management Act. 

Notice of a hearing on a floating aquaculture permit application is to be provided by the local government to the Departments of Fisheries, Wildlife, Natural Resources, Agriculture and Ecology, and to any person filing a request to receive such notices.  Adequate records of hearings are to be maintained by local governments.  The Administrative Procedure Act does not apply to board review of aquaculture permit decisions to the extent that Act is inconsistent with review procedures under the Shoreline Management Act.

Appropriation:    none

Revenue:    none

Fiscal Note:      requested January 29, 1988

Effective Date:The bill contains an emergency clause and takes effect immediately.