WSR 01-10-068




[ Order 706 -- Filed April 30, 2001, 8:35 a.m. ]

Subject of Possible Rule Making: The department is considering amendments and/or additions to chapter 332-30 WAC regarding the residential use of state-owned aquatic lands.

Statutes Authorizing the Agency to Adopt Rules on this Subject: The management philosophy the department follows regarding state-owned aquatic lands is described generally in RCW 79.90.450 where the legislative intent of the Aquatic Lands Act is outlined. In RCW 79.90.455, specific management guidelines for providing a balance of public benefits for all citizens of the state are given including: Encouraging direct public use and access; fostering water-dependent uses; ensuring environmental protection; utilizing renewable resources; and generating revenue consistent with the above.

To effectively carry out these management directives, RCW 79.90.080 specifically authorizes the Board of Natural Resources to make and enforce rules and regulations to carry out the provisions of chapters 79.90 through 79.96 RCW.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: Current RCWs and WACs give explicit direction for some, but not all, residential activities on state-owned aquatic lands. For example, by statute, house boats are water-oriented uses, and thus are treated as favored water-dependent uses if, and only if, they were established by 1984. Apartments and condominiums always are disfavored nonwater-dependent uses. In addition, by rule, house boats and new residential uses of any type are prohibited in harbor areas. However, "live-aboard vessels" are not specifically mentioned in statute or rule. This lack of clarity has contributed to controversy and confusion regarding residential use of state-owned aquatic lands.

New or amended rules are intended to clarify the department's management responsibilities and objectives regarding residential uses on state-owned aquatic lands, consistent with chapters 79.90 through 79.96 RCW, including to: Clarify the department's definitions of residential uses; determine what kind of residential uses, if any, are appropriate on state-owned aquatic lands, beyond the explicit statements in statute; address environmental concerns, legal liabilities and public access issues associated with residential uses; determine appropriate rental rates for residential uses; and provide guidance on leasing standards or other proprietary management practices for these and any other significant issues identified with regard to residential uses.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: State: Department of Ecology, Department of Health, Department of Community, Trade and Economic Development, port districts.

Federal: United States Coast Guard, United States Army Corps of Engineers.

The department will provide the same opportunities for involvement by these agencies as it will for the public's participation outlined below. In addition, it would be the intent that where appropriate any proposed rule be consistent with statutes guiding or rules adopted by those agencies.

Process for Developing New Rule: In addition to providing the minimum level of public involvement required by the Administrative Procedure Act, the department plans to follow a community relations approach to developing this rule. Opportunities for public participation will be offered during May and June 2001 in advance of filing notice of a proposed rule. Public workshops will be held around the state providing opportunities to present context for the rule, pose key questions and host brainstorming sessions. Legislators and their staff will be notified and asked to provide feedback to the department. Interested stakeholder groups will also be notified.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. The schedule for the public workshops noted above is: On May 24, 2001, at 7 - 9 p.m., Tacoma Community College, Building 3 Auditorium, 6501 South 19th Street, Tacoma, WA 98466; on June 4, 2001, at 7 - 9 p.m., Clark College, Gaiser Hall Central Conference Room, 1800 McLoughlin Boulevard, Vancouver, WA 98663; on June 7, 2001, at 7 - 9 p.m., Wenatchee Valley College, Anderson Building, Room 2048, 1300 5th Street, Wenatchee, WA 98801; on June 12, 2001, at 7 - 9 p.m., Renton Technical College, Building I, Main Cafeteria, 300 N.E. 4th Street, Renton, WA 98056; on June 14, 2001, at 7 - 9 p.m., Olympic College, Student Center, North and South Conference Rooms, 1600 Chester Avenue, Bremerton, WA 98337; and on June 20, 2001, at 7 - 9 p.m., Skagit Valley College, North Building, Room N120, 2405 East College Way, Mount Vernon, WA 98273.

The Department of Natural Resources encourages your active participation in the rule-making process. Anyone interested in more information or on how to participate should contact Matthew Green, Aquatic Resources Division, Department of Natural Resources, P.O. Box 47027, Olympia, WA 98504-7027, voice (360) 902-1017, e-mail, fax (360) 902-1786.

April 27, 2001

Francea McNair

Aquatics Steward

Washington State Code Reviser's Office