WSR 00-03-066

PROPOSED RULES

DEPARTMENT OF COMMUNITY,

TRADE AND ECONOMIC DEVELOPMENT

[ Filed January 18, 2000, 4:37 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-20-091.

Title of Rule: Best available science rule. The subject is criteria for ensuring that best available science (BAS) is included in the development of local policies and regulations for critical areas pursuant to RCW 36.70A.172. The rule also identifies ways to provide special consideration for preserving or enhancing anadromous fisheries, pursuant to RCW 36.70A.172.

Purpose: The purposes are (1) to provide guidance to counties and cities when developing policies and development regulations to protect the functions and values of critical areas and to give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries; and (2) to assist counties and cities in demonstrating they have met their statutory obligations under RCW 36.70A.172.

Statutory Authority for Adoption: RCW 36.70A.190 (4)(b).

Statute Being Implemented: RCW 36.70A.172(1).

Summary: The rule has six sections that include the following information: WAC 365-195-900 Background and purpose, 365-195-905 How do counties and cities determine which information is the "best available science"? WAC 365-195-910 Where can counties and cities locate the best available science? WAC 365-195-915 How do counties and cities include the best available science in developing policies and development regulations? WAC 365-195-920 What should counties and cities do if there is inadequate scientific information available relating to their critical areas? and WAC 365-195-925 How do counties and cities demonstrate they have given "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries?

Reasons Supporting Proposal: Local governments are subject to legal challenges in implementing the statute about "best available science" under the Growth Management Act (GMA). The Department of Community, Trade and Economic Development (CTED) is required to provide technical assistance through rules to help local governments implement the GMA.

Name of Agency Personnel Responsible for Drafting: Chris Parsons, Department of Community, Trade and Economic Development, P.O. Box 48300, Olympia, WA 98504-8300, (360) 664-8809; and Implementation: Shane Hope, Department of Community, Trade and Economic Development, P.O. Box 48300, Olympia, WA 98504-8300, (360) 753-1197.

Name of Proponent: Washington State Department of Community, Trade and Economic Development, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Cities and counties are encouraged to refer to this rule when developing policies and regulations regarding critical areas under the GMA.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The best available science rule assists cities and counties with including the "best available science" in the development of policies and development regulations to protect critical areas functions and values. Critical areas are defined in the GMA as wetlands, fish and wildlife habitat conservation areas, critical aquifer recharge areas, frequently flooded areas and geologically hazardous areas. The rule also identifies ways to provide special consideration for preserving or enhancing anadromous fisheries, pursuant to RCW 36.70A.172. This rule is intended to assist counties and cities in identifying and including the best available science in their periodic review and evaluation of development regulations and policies and in demonstrating they have met their statutory obligations under RCW 36.70A.172. The use and application of this rule is discretionary and does not contain substantive standards that jurisdictions must apply.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule is advisory to cities and counties only and has no direct effect on small businesses.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The statute does not apply because this rule is procedural guidance for local governments. RCW 34.05.028 (5)(a)(ii) [34.05.328 (5)(b)(ii)] specifically exempts rules relating only to internal governmental operations that are not subject to violations by a nongovernmental party.

Hearing Location: On March 1, 2000, at 6:30 p.m. - 9:00 p.m., at the Water Resources Education Center Conference Room, 4600 S.E. Columbia Way, Vancouver, WA; on March 14, 2000, at 6:30 p.m. - 9:00 p.m., at the Seattle Center Conference Center, Room G (Center House), 305 Harrison Street, Seattle, WA; on March 28, 2000, at 6:30 p.m. - 9:00 p.m., at the Hal Holmes Community Center, 201 North Ruby Street, Ellensburg, WA; and on March 29, 2000, at 6:30 p.m. - 9:00 p.m., at the Eastern Washington University Riverpoint Campus, 668 North Riverpoint Boulevard, Spokane, WA.

Assistance for Persons with Disabilities: Contact Chris Parsons by February 28, 2000, TDD (360) 586-4224, or (360) 586-1557.

Submit Written Comments to: Chris Parsons, Senior Planner, Department of Community, Trade and Economic Development, P.O. Box 48300, Olympia, WA 98504-8300, fax (360) 753-2950, or e-mail chrisp@cted.wa.gov, by March 31, 2000.

Date of Intended Adoption: May 1, 2000.

January 18, 2000

Busse Nutely

Deputy Director

OTS-3609.3

PART NINE

BEST AVAILABLE SCIENCE
NEW SECTION
WAC 365-195-900
Background and purpose.

(1) Counties and cities planning under RCW 36.70A.040 are subject to continuing review and evaluation of their comprehensive land use plan and development regulations. Every five years they must take action to review and revise their plans and regulations, if needed, to ensure they comply with the requirements of the Growth Management Act. RCW 36.70A.215.

(2) Counties and cities must include the "best available science" when developing policies and development regulations to protect the functions and values of critical areas and must give "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries. RCW 36.70A.172(1). The rules in WAC 365-195-900 through 365-195-925 are intended to assist counties and cities in identifying and including the best available science in this periodic review and evaluation and in demonstrating they have met their statutory obligations under RCW 36.70A.172(1).

(3) The inclusion of the best available science in the development of critical areas policies and regulations is especially important to salmon recovery efforts, and to other decision-making affecting threatened or endangered species.

(4) These rules are adopted under the authority of RCW 36.70A.190 (4)(b) which requires the department of community, trade, and economic development (department) to adopt rules to assist counties and cities to comply with the goals and requirements of the Growth Management Act.

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NEW SECTION
WAC 365-195-905
How do counties and cities determine which information is the "best available science?"

(1) This section provides assessment criteria to assist counties and cities in determining whether information obtained during development of critical areas policies and regulations constitutes the "best available science."

(2) The ultimate accountability for determining whether information obtained during development of critical areas policies and regulations constitutes the "best available science" rests with the legislative authority of the county or city. However, when feasible, counties and cities should consult with a qualified scientific expert or team of qualified scientific experts to identify scientific information, determine the best available science, and assess its applicability to the relevant critical areas. The scientific expert or experts may rely on their professional judgment based on experience and training, but they should use the criteria set out in WAC 365-195-900 through 365-195-925 and any technical guidance provided by the department. Use of these criteria also should guide counties and cities that lack the assistance of a qualified expert or experts, but these criteria are not intended to be a substitute for an assessment and recommendation by a qualified scientific expert or team of experts.

(3) Whether a person is a qualified scientific expert with expertise appropriate to the relevant critical areas is determined by the person's professional credentials and/or certification, any advanced degrees earned in the pertinent scientific discipline from a recognized university, the number of years of experience in the pertinent scientific discipline, recognized leadership in the discipline of interest, formal training in the specific area of expertise, and field and/or laboratory experience with evidence of the ability to produce peer-reviewed publications or other professional literature. No one factor is determinative in deciding whether a person is a qualified scientific expert. Where pertinent scientific information implicates multiple scientific disciplines, counties and cities are encouraged to consult a team of qualified scientific experts representing the various disciplines to ensure the identification and inclusion of the best available science.

(4) Counties and cities may use information that local, state or federal natural resource agencies have determined represents the best available science. The department will make available a list of resources that state agencies have identified as meeting the criteria for best available science pursuant to this chapter.

(5) Scientific information can be produced only through a valid scientific process. To ensure that best available science is being included, a county or city should consider the following:

(a) Characteristics of a valid scientific process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government's regulatory decisions and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the public participation process is reliable scientific information, a county or city must determine whether the source of the information displays the characteristics of a valid scientific process. The characteristics generally to be expected in a valid scientific process are as follows:


1. Peer review. The information has been critically reviewed by other persons who are experts in that scientific discipline. The criticism of the peer reviewers has been addressed by the proponents of the information. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed.

2. Methods. The methods that were used to obtain the information are clearly stated and able to be replicated. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to assure their reliability and validity.

3. Logical conclusions and reasonable inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained.

4. Quantitative analysis. The data have been analyzed using appropriate statistical or quantitative methods.

5. Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge.

6. References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

(b) Common sources of scientific information. Some sources of information routinely exhibit all or some of the characteristics listed in (a) of this subsection. Information derived from one of the following sources may be considered scientific information if the source possesses the characteristics necessary to ensure the information is scientifically valid and reliable. A county or city may consider information to be scientifically valid if the source possesses the characteristics listed in (a) of this subsection. The information found in Table 1 provides a general indication of the characteristics typically associated with common sources of scientific information.


Table 1 CHARACTERISTICS
Peer

review

Methods Logical

conclusions

&

reasonable

inferences

Quantitative

analysis

Context References
SOURCES OF SCIENTIFIC INFORMATION
A. Research. Research data collected and analyzed as part of a controlled experiment (or other appropriate methodology) to test a specific hypothesis.

X

X

X

X

X

X

B. Monitoring. Monitoring data collected periodically over time to determine a resource trend or evaluate a management program.

X

X

Y

X

X

C. Inventory. Inventory data collected from an entire population or population segment (e.g., individuals in a plant or animal species) or an entire ecosystem or ecosystem segment (e.g., the species in a particular wetland).

X

X

Y

X

X

D. Survey. Survey data collected from a statistical sample from a population or ecosystem.
X

X

Y

X

X
E. Modeling. Mathematical or symbolic simulation or representation of a natural system. Models generally are used to understand and explain occurrences that cannot be directly observed.

X

X

X

X

X

X

F. Assessment. Inspection and evaluation of site-specific information by a qualified scientific expert. An assessment may or may not involve collection of new data.

X

X

X

X

G. Synthesis. A comprehensive review and explanation of pertinent literature and other relevant existing knowledge by a qualified scientific expert.

X

X

X

X

X

H. Expert Opinion. Statement of a qualified scientific expert based on his or her best professional judgment and experience in the pertinent scientific discipline. The opinion may or may not be based on site-specific information.

X

X

X

X =characteristic must be present for information derived to be considered scientifically valid and reliable

Y =presence of characteristic strengthens scientific validity and reliability of information derived, but is not essential to ensure scientific validity and reliability


(c) Common sources of nonscientific information. Many sources of information usually do not produce scientific information because they do not exhibit the necessary characteristics for scientific validity and reliability. Information from these sources may provide valuable information to supplement scientific information, but should not be used as a substitute for valid and available scientific information. Common sources of nonscientific information include the following:

(i) Anecdotal information. One or more observations which are not part of an organized scientific effort (for example, "I saw a grizzly bear in that area while I was hiking").

(ii) Nonexpert opinion. Opinion of a person who is not a qualified scientific expert in a pertinent scientific discipline (for example, "I do not believe there are grizzly bears in that area").

(iii) Hearsay. Information repeated from communication with others (for example, "At a lecture last week, Dr. Smith said there were no grizzly bears in that area").

(6) Counties and cities are encouraged to monitor and evaluate their efforts in critical areas protection and incorporate new scientific information, as it becomes available.

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NEW SECTION
WAC 365-195-910
Where can counties and cities locate the best available science?

(1) Consultation with state natural resources agencies can provide a quick and cost-effective way to develop scientific information and recommendations. State natural resource agencies provide numerous guidance documents and model ordinances that incorporate the agencies' assessments of the best available science. The department can provide technical assistance in obtaining such information from state natural resources agencies, developing model GMA-compliant critical areas policies and development regulations, and related subjects. The department will make available to interested parties a current list of the best available science as identified by state or federal natural resource agencies for critical areas.

(2) A county or city may compile scientific information through its own efforts, with or without the assistance of qualified experts, and through state agency review and the Growth Management Act's required public participation process. The county or city must assess whether the scientific information it compiles constitutes the best available science, using the criteria set out in WAC 365-195-900 through 365-195-925 and any technical guidance provided by the department. If not, the county or city must identify and assemble additional scientific information to ensure it has included the best available science.

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NEW SECTION
WAC 365-195-915
How do counties and cities include the best available science in developing policies and development regulations?

(1) To demonstrate that the best available science has been included in the development of critical areas policies and regulations, counties and cities should address each of the following on the record:

(a) The specific policies and development regulations adopted to protect the functions and values of the critical areas at issue.

(b) The relevant sources of best available scientific information included in the decision-making.

(c) Any nonscientific information -- including legal, social, cultural, economic, and political information -- used as a basis for critical area policies and regulations that depart from recommendations derived from the best available science. A county or city departing from science-based recommendations should:

(i) Identify the information in the record that supports its decision to depart from science-based recommendations;

(ii) Explain its rationale for departing from science-based recommendations; and

(iii) Identify potential risks to the functions and values of the critical area or areas at issue and any additional measures chosen to limit such risks. State Environmental Policy Act (SEPA) review often provides an opportunity to establish and publish the record of this assessment.

(2) Counties and cities must include the best available science in determining whether to grant applications for administrative variances and exceptions from generally applicable provisions in policies and development regulations adopted to protect the functions and values of critical areas. Counties and cities should adopt procedures and criteria to ensure that the best available science is included in every review of an application for an administrative variance or exception.

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NEW SECTION
WAC 365-195-920
What should counties and cities do if there is inadequate scientific information available relating to their critical areas?

Where there is an absence of valid scientific information or incomplete scientific information relating to a county's or city's critical areas, leading to uncertainty about which development and land uses could lead to harm of critical areas or uncertainty about the risk to critical area function of permitting development, counties and cities should use one of the following approaches:

(1) A "precautionary or a no risk approach," in which development and land use activities are strictly limited until the uncertainty is sufficiently resolved; or

(2) As an interim approach, an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions achieve their objectives. Management, policy, and regulatory actions are treated as experiments that are purposefully monitored and evaluated to determine whether they are effective and, if not, how they should be improved to increase their effectiveness. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. To effectively implement an adaptive management program, counties and cities must be willing to:

(a) Pay for a research program;

(b) Change course based on the results and interpretation of new information that resolves uncertainties; and

(c) Commit to the appropriate timeframe and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting critical areas protection and anadromous fisheries.

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NEW SECTION
WAC 365-195-925
How do counties and cities demonstrate they have given "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries?

(1) RCW 36.70A.172(1) imposes two distinct but related requirements on counties and cities. Counties and cities must include the "best available science" when developing policies and development regulations to protect the functions and values of critical areas, and counties and cities must give "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries. Local governments should address both requirements in RCW 36.70A.172(1) when developing their records to support their critical areas policies and development regulations.

(2) To demonstrate compliance with RCW 36.70A.172(1), a county or city adopting policies and development regulations to protect critical areas must include in the record evidence that it has given "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries. The record should be developed using the criteria set out in WAC 365-195-900 through 365-195-925 to ensure that conservation or protection measures necessary to preserve or enhance anadromous fisheries are grounded in the best available science.

(3) Conservation or protection measures necessary to preserve or enhance anadromous fisheries include measures that protect habitat important for all life stages of anadromous fish, including, but not limited to, spawning and incubation, juvenile rearing and adult residence, juvenile migration downstream to the sea, and adult migration upstream to spawning areas. Special consideration must be given to habitat protection measures based on the best available science relevant to stream flows, water quality and temperature, spawning substrates, instream structural diversity, migratory access, estuary and nearshore marine habitat quality, and the maintenance of salmon prey species. Conservation or protection measures can include the adoption of interim actions and long-term strategies to protect and enhance fisheries resources.

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Washington State Code Reviser's Office