WSR 17-15-084 PROPOSED RULES DEPARTMENT OF COMMERCE [Filed July 17, 2017, 1:47 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-03-065.
Title of Rule and Other Identifying Information: Chapter 365-196 WAC, Procedural criteria for adopting comprehensive plans and development regulations.
Hearing Location(s): Washington State Department of Commerce, 1011 Plum Street S.E., Building 5, Large Conference Room 307, Olympia, WA, on August 23, 2017, at 10 a.m.
Date of Intended Adoption: September 22, 2017.
Submit Written Comments to: Scott Kuhta, 10 North Post Street, Suite 445, Spokane, WA 99201, email scott.kuhta@commerce.wa.gov, by 5 p.m. on August 23, 2017.
Assistance for Persons with Disabilities: Contact Scott Kuhta by August 10, 2017, TTY (360) 586-0772 or (509) 795-6884.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To amend existing rules to reflect recent growth management hearings board (GMHB) cases and supreme court decisions pertaining to development regulations and the adequate protection of critical areas functions and values where agricultural activities take place. The proposal also adopts amendments to reflect legislative changes to the Growth Management Act (GMA), which was amended in 2011 to include a chapter on the voluntary stewardship program (RCW 36.70A.700). This includes amending rules to add the statutory definition for "agricultural activities," to describe the responsibility of counties enrolled in the voluntary stewardship program when conducting a periodic review and update of comprehensive plans and development regulations, to clarify the relationship between the shoreline management program and the voluntary stewardship program, and to provide direction on the exemption of agricultural activities in critical areas. Additionally, a housekeeping amendment is proposed to comply with updated definitions in RCW 82.02.090. The rule update also includes a new section (WAC 365-196-832) within chapter 365-196 WAC, to provide specific guidance for implementing the voluntary stewardship program. The proposal amends five rules and creates one new rule. The following five rules were created and amended to reflect new or amended statutes and GMHB cases: WAC 365-196-200, 365-196-580, 365-196-610, 365-196-830, 365-196-832 (new), and 365-196-850.
Reasons Supporting Proposal: To bring the rules into conformance with legislative changes to GMA, RCW 36.70A.700, 82.02.090, and to reflect recent GMHB cases and supreme court decisions.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state department of commerce, governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Scott Kuhta, 10 North Post Street, Suite 445, Spokane, WA 99201, (509) 795-6884; and Enforcement: No enforcement authority.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Proposed changes reflect direct statutory requirements that impose no direct obligations. Chapter 365-196 WAC provides guidance to counties and cities regarding implementation of the GMA. Counties and cities consider these rules, but they are not binding on counties and cities. In choosing how to implement the GMA, using the guidance in the rules, counties and cities may or may not choose to revise their comprehensive plans, development regulations, and other local land use ordinances. The rules are not substantive and if the local government does not follow the rules, they are not subject to any penalty or sanction nor do the rules establish standards for the issuance of a license.
Although the choices made by local governments may result in some impacts to many types and sizes of businesses, these rules do not directly regulate any businesses. Instead, they provide guidance to local governments in developing their plans and regulations. Thus, it can be determined that the rules do not impose more than minor costs on businesses in an industry, and a small business economic impact statement is not required.
A cost-benefit analysis is not required under RCW 34.05.328. The department of commerce is not listed as one of the agencies to which this section applies and does not wish to make this section voluntarily applicable to the rule per subsection (5)(a)(ii). Therefore, unless subsection (5)(a)(ii) is invoked by the joint administrative rules review committee after the filing of the CR-102, no cost-benefit analysis needs to be prepared for this rule.
July 17, 2017
Jaime Rossman
Rules Coordinator
AMENDATORY SECTION (Amending WSR 15-04-039, filed 1/27/15, effective 2/27/15)
WAC 365-196-200 Statutory definitions.
The following definitions are contained in chapter 36.70A RCW and provided under this section for convenience. Most statutory definitions included in this section are located in RCW 36.70A.030. Other relevant statutory terms defined elsewhere in chapter 36.70A RCW are also included in this section.
(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 activities" means all agricultural uses and practices as defined in RCW 90.58.065.
(3) "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))) (4) "City" means any city or town, including a code city.
(((4))) (5) "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))) (6) "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.
"Fish and wildlife habitat conservation areas" does not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company.
(((6))) (7) "Department" means the department of commerce.
(((7))) (8) "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))) (9) "Essential public facilities" includes those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
(((9))) (10) "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 84.33.110, 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.
(((10))) (11) "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.
(((11))) (12) "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.
(((12))) (13) "Master planned resort" means a self-contained and fully integrated planned unit development, in a setting of significant natural amenities, with primary focus on destination resort facilities consisting of short-term visitor accommodations associated with a range of developed on-site indoor or outdoor recreational facilities.
(((13))) (14) "Minerals" include gravel, sand, and valuable metallic substances.
(((14))) (15) "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.
(((15))) (16) "Public services" include fire protection and suppression, law enforcement, public health, education, recreation, environmental protection, and other governmental services.
(((16))) (17) "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.
(((17))) (18) "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.
(((18))) (19) "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).
(((19))) (20) "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.
(((20))) (21) "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.170 (1)(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.
(((21))) (22) "Urban growth areas" means those areas designated by a county pursuant to RCW 36.70A.110.
(((22))) (23) "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.
AMENDATORY SECTION (Amending WSR 10-22-103, filed 11/2/10, effective 12/3/10)
WAC 365-196-580 Integration with the Shoreline Management Act.
(1) For shorelines of the state, the goals and policies of the Shoreline Management Act as set forth under RCW 90.58.020 are added as one of the goals of this chapter as set forth under RCW 36.70A.020 without creating an order of priority among the fourteen goals. The goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW shall be considered an element of the county or city's comprehensive plan. All other portions of the shoreline master program for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations.
(2) The shoreline master program shall be adopted pursuant to the procedures under chapter 90.58 RCW rather than the goals, policies, and procedures set forth in chapter 36.70A RCW for the adoption of a comprehensive plan or development regulations.
(3)(a) The policies, goals, and provisions of chapter 90.58 RCW and applicable guidelines shall be the sole basis for determining compliance of a shoreline master program with chapter 36.70A RCW except as the shoreline master program is required to comply with the internal consistency provisions of RCW 36.70A.070, 36.70A.040(4), 35.63.125, and 35A.63.105.
(b) Except as otherwise provided in (c) of this subsection, development regulations adopted under chapter 36.70A RCW to protect critical areas within shorelines of the state apply within shorelines of the state until the department of ecology approves one of the following: A comprehensive master program update, as defined under RCW 90.58.030; a segment of a master program relating to critical areas, as provided under RCW 90.58.090; or a new or amended master program approved by the department of ecology on or after March 1, 2002, as provided under RCW 90.58.080. The adoption or update of development regulations to protect critical areas under chapter 36.70A RCW prior to department of ecology approval of a master program update as provided in this subsection is not a comprehensive or segment update to the master program.
(c)(i) Until the department of ecology approves a master program or segment of a master program as provided in (b) of this subsection, a use or structure legally located within shorelines of the state that was established or vested on or before the effective date of the local government's development regulations to protect critical areas may continue as a conforming use and may be redeveloped or modified if:
(A) The redevelopment or modification is consistent with the local government's master program; and
(B) The local government determines that the proposed redevelopment or modification will result in no net loss of shoreline ecological functions. The local government may waive this requirement if the redevelopment or modification is consistent with the master program and the local government's development regulations to protect critical areas.
(ii) For purposes of (c) of this subsection, an agricultural activity that does not expand the area being used for the agricultural activity is not a redevelopment or modification. "Agricultural activity," as used in (c) of this subsection, has the same meaning as defined under RCW 90.58.065.
(d) Upon department of ecology approval of a shoreline master program or critical area segment of a shoreline master program, critical areas within shorelines of the state are protected under chapter 90.58 RCW and are not subject to the procedural and substantive requirements of chapter 36.70A RCW, except as provided in subsection (6) of this section. Nothing in chapter 321, Laws of 2003 or the act is intended to affect whether or to what extent agricultural activities, as defined under RCW 90.58.065, are subject to chapter 36.70A RCW.
(e) The provisions under RCW 36.70A.172 shall not apply to the adoption or subsequent amendment of a local government's shoreline master program and shall not be used to determine compliance of a local government's shoreline master program with chapter 90.58 RCW and applicable guidelines. Nothing in this section; however, is intended to limit or change the quality of information to be applied in protecting critical areas within shorelines of the state, as required under chapter 90.58 RCW and applicable guidelines.
(4) Shoreline master programs shall provide a level of protection to critical areas located within shorelines of the state that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by department of ecology guidelines adopted pursuant to RCW 90.58.060.
(5) Shorelines of the state shall not be considered critical areas under chapter 36.70A RCW except to the extent that specific areas located within shorelines of the state qualify for critical area designation based on the definition of critical areas provided under RCW 36.70A.030(5) and have been designated as such by a local government pursuant to RCW 36.70A.060(2).
(6) If a local jurisdiction's master program does not include land necessary for buffers for critical areas that occur within shorelines of the state, as authorized under RCW 90.58.030 (2)(f), then the local jurisdiction shall continue to regulate those critical areas and their required buffers pursuant to RCW 36.70A.060(2).
(7) County participation in the voluntary stewardship program does not change applicability of the Shoreline Management Act, or requirements of local shoreline master programs.
(a) As required by RCW 90.58.065, shoreline master programs shall not limit or modify existing and ongoing agricultural activities occurring on agricultural lands.
(b) Master programs shall include provisions addressing new agricultural activities on land not meeting the definition of agricultural land, conversion of agricultural lands to other uses, and other development on agricultural land that does not meet the definition of agricultural activities.
AMENDATORY SECTION (Amending WSR 15-04-039, filed 1/27/15, effective 2/27/15)
WAC 365-196-610 Periodic review and update of comprehensive plans and development regulations.
(1) Requirements.
(a) Counties and cities must periodically take legislative action to review and, if necessary, revise their comprehensive plans and development regulations to ensure the plan and regulations comply with the requirements of the act. This review and revision, required under RCW 36.70A.130(1), is referred to in this section as the periodic update.
(b) Deadlines for periodic update. Comprehensive plans and development regulations are subject to periodic update on a schedule established in RCW 36.70A.130(5).
(i) Deadlines for completion of periodic review are as follows:
Table WAC 365-196-610.1
Deadlines for Completion of Periodic Review 2015 - 2018
(ii) Certain smaller, slower-growing counties and cities may take up to an additional two years to complete the update.
(A) The eligibility of a county for the two-year extension does not affect the eligibility of the cities within the county.
(B) A county is eligible if it has a population of less than fifty thousand and a growth rate of less than seventeen percent.
(C) A city is eligible if it has a population of less than five thousand, and either a growth rate of less than seventeen percent or a total population growth of less than one hundred persons.
(D) Growth rates are measured using the ten-year period preceding the due date listed in RCW 36.70A.130(5).
(E) If a city or county qualifies for the extension on the statutory due date, they remain eligible for the entire extension period, even if they no longer meet the criteria due to population growth.
(c) Taking legislative action.
(i) The periodic update must be accomplished through legislative action. Legislative action means the adoption of a resolution or ordinance following notice and a public hearing including, at a minimum, a finding that a review and evaluation has occurred and identifying the revisions made, or that a revision was not needed and the reasons therefore.
(ii) Legislative action includes two components. It includes a review of the comprehensive plan and development regulations and it includes the adoption of any amendments necessary to bring the comprehensive plan and development regulations into compliance with the requirements of the act.
(d) What must be reviewed.
(i) Counties and cities that plan under RCW 36.70A.040 must review and, if needed, revise their comprehensive plans and development regulations for compliance with the act. This includes the critical areas ordinance.
(ii) Counties and cities that do not plan under RCW 36.70A.040 must review and, if needed, revise their resource lands designations and their development regulations designating and protecting critical areas.
(iii) Counties participating in the voluntary stewardship program must review and, if needed, revise their development regulations not governed by the voluntary stewardship program, except as provided in RCW 36.70A.130(8).
(e) The required scope of review. The purpose of the review is to determine if revisions are needed to bring the comprehensive plan and development regulation into compliance with the requirements of the act. The update process provides the method for bringing plans into compliance with the requirements of the act that have been added or changed since the last update and for responding to changes in land use and in population growth. This review is necessary so that comprehensive plans are not allowed to fall out of compliance with the act over time through inaction. This review must include at least the following:
(i) Consideration of the critical areas ordinance;
(ii) Analysis of urban growth area review required by RCW 36.70A.130(3) (see WAC 365-196-310);
(iii) Review of mineral resource lands designations and mineral resource lands development regulations adopted pursuant to RCW 36.70A.040 and 36.70A.060; and
(iv) Changes to the act or other applicable laws since the last review that have not been addressed in the comprehensive plan and development regulations.
(2) Recommendations for meeting requirements.
(a) Public participation program.
(i) Counties and cities should establish a public participation program that includes a schedule for the periodic update and identifies when legislative action on the review and update component are proposed to occur. The public participation program should also inform the public of when to comment on proposed changes to the comprehensive plan and clearly identify the scope of the review. Notice of the update process should be broadly disseminated as required by RCW 36.70A.035.
(ii) Counties and cities may adjust the public participation program to best meet the intent of the requirement. RCW 36.70A.140 notes that errors in exact compliance with the established program and procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the program and procedures is observed. For example, if an established public participation program included one public hearing on all actions having to do with the periodic update process, the public participation program could be adjusted later to provide additional public hearings to accommodate strong public interest.
(b) Review of relevant statutes and local information and analysis of whether there is a need for revisions.
(i) Amendments to the act. Counties and cities should first review amendments to the act that have occurred since the initial adoption or previous periodic update, and determine if local amendments are needed to maintain compliance with the act. The department will maintain a comprehensive list of legislative amendments and a checklist to assist counties and cities with this review.
(ii) Review and analysis of relevant plans, regulations and information. Although existing comprehensive plans and development regulations are considered compliant, counties and cities should consider reviewing development and other activities that have occurred since adoption to determine if the comprehensive plans and development regulations remain consistent with, and implement, the act. This should include at least the following:
(A) Analysis of the population allocated to a city or county during the most recent urban growth area review (see WAC 365-196-310);
(B) Consideration of critical areas and resource lands ordinances;
(C) Review of mineral resource lands designations and development regulations adopted pursuant to RCW 36.70A.040 and 36.70A.060;
(D) Capital facilities plans. Changes in anticipated circumstances and needs should be addressed by updating the ten-year transportation plan and six-year capital facilities elements. This includes a reassessment of the land use element if funding falls short;
(E) Land use element;
(F) Changes to comprehensive plans and development regulations in adjacent jurisdictions, special purpose districts, or state plans that create an inconsistency with the county or city's comprehensive plan or development regulations;
(G) Basic assumptions underlying key calculations and conclusions in the existing comprehensive plan. If recent data demonstrates that key existing assumptions are no longer appropriate for the remainder of the twenty-year plan, counties and cities should consider updating them as part of the periodic update (see WAC 365-196-310). Counties and cities required to establish a review and evaluation program under RCW 36.70A.215, should use that information in this review (see WAC 365-196-315); and
(H) Inventories. Counties and cities should review required inventories and to determine if new data or analysis is needed. Table 2 contains summary of the inventories required in the act.
Table WAC 365-196-610.2
Inventories Required by the Act
(c) Take legislative action.
(i) Any legislative action that completes a portion of the review and update process, either in whole or in part, must state in its findings that it is part of the update process.
(ii) Any public hearings on legislative actions that are, either in whole or in part, legislative actions completing the update must state in the notice of hearing that the actions considered are part of the update process.
(iii) At the end of the review and update process, counties and cities should take legislative action declaring the update process complete, either as a separate legislative action, or as a part of the final legislative action that occurs as part of the update process. This action should reference all prior legislative actions occurring as part of the update process.
(d) Submit notice of completion to the department. When adopted, counties and cities should transmit the notice of adoption to the department, consistent with RCW 36.70A.106. RCW 36.70A.130 requires compliance with the review and update requirement as a condition of eligibility for state grant and loan programs. The department tracks compliance with this requirement for agencies managing these grant and loan programs. Providing notice of completion to the department will help maintain access to these grant and loan programs.
(3) Relationship to other review and amendment requirements in the act.
(a) Relationship to the comprehensive plan amendment process. Cities and counties may amend the comprehensive plan no more often than once per year, as required in RCW 36.70A.130(2), and referred to as the docket. If a city or county conducts a comprehensive plan docket cycle in the year in which the review of the comprehensive plan is completed, it must be combined with the periodic review process. Cities and counties may not conduct the periodic review and a docket of amendments as separate processes in the same year.
(b) Urban growth area (UGA) review. As part of the periodic review, cities and counties must review the areas and densities contained in the urban growth area and, if necessary, revise their comprehensive plan to accommodate the growth projected to occur in the county for the succeeding twenty-year period, as required in RCW 36.70A.130(3) (see WAC 365-196-310).
AMENDATORY SECTION (Amending WSR 10-03-085, filed 1/19/10, effective 2/19/10)
WAC 365-196-830 Protection of critical areas.
(1) The act requires the designation of critical areas and the adoption of regulations for the protection of such areas by all counties and cities, including those that do not plan under RCW 36.70A.040. The department has adopted minimum guidelines in chapter 365-190 WAC detailing the process involved in establishing a program to protect critical areas.
(2) Critical areas that must be protected include the following areas and ecosystems:
(a) Wetlands;
(b) Areas of 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.
(3) "Protection" in this context means preservation of the functions and values of the natural environment, or to safeguard the public from hazards to health and safety.
(4) Although counties and cities may protect critical areas in different ways or may allow some localized impacts to critical areas, or even the potential loss of some critical areas, development regulations must preserve the existing functions and values of critical areas. If development regulations allow harm to critical areas, they must require compensatory mitigation of the harm. Development regulations may not allow a net loss of the functions and values of the ecosystem that includes the impacted or lost critical areas.
(5) Counties and cities must include the best available science in developing policies and development regulations to protect functions and values of critical areas. See chapter 365-195 WAC.
(6) Functions and values must be evaluated at a scale appropriate to the function being evaluated. Functions are the conditions and processes that support the ecosystem. Conditions and processes operate on varying geographic scales ranging from site-specific to watershed and even regional scales. Some critical areas, such as wetlands and fish and wildlife habitat conservation areas, may constitute ecosystems or parts of ecosystems that transcend the boundaries of individual parcels and jurisdictions, so that protection of their function, and values should be considered on a larger scale.
(7) Protecting some critical areas may require using both regulatory and nonregulatory measures. When impacts to critical areas are from development beyond jurisdictional control, counties and cities are encouraged to use regional approaches to protect functions and values. It is especially important to use a regional approach when giving special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries. Conservation and protection measures may address land uses on any lands within a jurisdiction, and not only lands with designated critical areas.
(8) Local government may develop and implement alternative means of protecting critical areas from some activities using best management practices or a combination of regulatory and nonregulatory programs.
(a) When developing alternative means of protection, counties and cities must assure no net loss of functions and values and must include the best available science.
(b) Local governments must review and evaluate their development regulations to assure the protection of critical areas where agricultural activities take place.
(c) Local governments shall not broadly exempt agricultural activities from their critical areas regulations.
(d) Counties participating in the voluntary stewardship program must review and, if needed, revise their development regulations not governed by the voluntary stewardship program, except as provided in RCW 36.70A.130(8).
(9) In designing development regulations and nonregulatory programs to protect designated critical areas, counties and cities should endeavor to make such regulations and programs fit together with regional, state and federal programs directed to the same environmental, health, safety and welfare ends. Local plans and policies may in some respects be adequately implemented by adopting the provisions of such other programs as part of the local regulations.
NEW SECTION
WAC 365-196-832 Protection of critical areas and voluntary stewardship program.
(1) Upon approval of a watershed work plan, counties participating in the voluntary stewardship program pursuant to RCW 36.70A.710 are encouraged to reference and describe their participation in the program within their critical areas development regulations. Counties should ensure their development regulations are consistent with the approved watershed work plan.
(2) Prior to the approval of a work plan by the state conservation commission director, agricultural activities located in participating watersheds as defined in RCW 36.70A.703(5) are subject to existing development regulations that protect critical areas.
(3) After watershed work plan approval, protection of functions and values of critical areas from agricultural activities located in participating watersheds as defined in RCW 36.70A.703(5) is provided by the watershed work plan and any applicable development regulations. Agricultural activities located in nonparticipating watersheds are subject to applicable development regulations that protect critical areas.
(4) County responsibilities when withdrawing from the voluntary stewardship program. Counties that elect to protect critical areas through the voluntary stewardship program under RCW 36.70A.710 (1)(a) may withdraw a participating watershed from the program by adopting an ordinance or resolution withdrawing the watershed from the program. A county may withdraw a watershed from the program at the end of three years, five years or eight years after receipt of funding, or any time after ten years of funding. Watersheds withdrawn from the program are subject to RCW 36.70A.710 (7)(b).
Within eighteen months after withdrawing a participating watershed from the program, counties must review and, if necessary, revise their development regulations that protect critical areas in that watershed as they specifically apply to agricultural activities. The development regulations must protect the critical area functions and values as they existed on July 22, 2011. During this interim period, counties must continue to protect critical areas in watersheds withdrawn from the program. The adopted ordinance or resolution used to withdraw participating watersheds must state how counties will continue to protect critical areas in watersheds withdrawn from the program. Counties have two options during the interim period:
(a) Adopt interim development regulations or revert to development regulations that were in place at the time of the watershed work plan approval; or
(b) Continue to implement the watershed work plan.
(5) County responsibilities when exiting the voluntary stewardship program. Watershed work plans that are not approved, fail, or are not funded are subject to RCW 36.70A.735(1).
Within eighteen months, counties must adopt one of the four options pursuant to RCW 36.70A.735(1). During this interim period, counties must continue to protect critical areas in areas used for agricultural activities. The four options include:
(a) Pursuant to RCW 36.70A.735 (1)(a) develop, adopt, and implement a watershed work plan approved by the state department of commerce that protects critical areas in areas used for agricultural activities while maintaining the viability of agriculture in the watershed.
(b) Pursuant to RCW 36.70A.735 (1)(b) adopt development regulations previously adopted by another local government to protect critical areas in areas used for agricultural activities. Counties may adopt another county's critical area development regulations, provided such regulations are from a region with similar agricultural activities, geography, and geology, and are from Clallam, Clark, King, or Whatcom counties at the time the voluntary stewardship program legislation was enacted, and have not been invalidated, or are from any county (including Clallam, Clark, King, or Whatcom) and have been upheld as adequately protective of critical areas functions and values in areas used for agricultural activities by the growth management hearings board or court after July 1, 2011.
(c) Pursuant to RCW 36.70A.735 (1)(c) adopt development regulations certified by the state department of commerce as protective of critical areas in areas used for agricultural activities.
(d) Pursuant to RCW 36.70A.735 (1)(d) review, and if necessary, revise development regulations adopted to protect critical areas as they relate to agricultural activities.
AMENDATORY SECTION (Amending WSR 10-03-085, filed 1/19/10, effective 2/19/10)
WAC 365-196-850 Impact fees.
(1) Counties and cities planning under the act are authorized to impose impact fees on development activities as part of public facilities financing. However, the financing for system improvements to serve new development must provide a balance between impact fees and other sources of public funds and cannot rely solely on impact fees.
(2) The decision to use impact fees should be specifically implemented through development regulations. The regulations should call for a specific finding on all three of the following limitations whenever an impact fee is imposed. The impact fees:
(a) Must only be imposed for system improvements that are reasonably related to the new development. "System improvements" (in contrast to "project improvements") are public facilities included in the capital facilities plan that are designed to provide service to service areas within the community at large;
(b) Must not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development; and
(c) Must be used for system improvements that will reasonably benefit the new development.
(3) Impact fees may be collected and spent only for the following capital facilities owned or operated by government entities:
(a) Public streets and roads;
(b) Publicly owned parks;
(c) Open space and recreation facilities;
(d) School facilities; and
(e) Fire protection facilities ((in jurisdictions that are not part of a fire district)).
(4) Capital facilities for which impact fees will be imposed must have been addressed in a capital facilities plan element which identifies:
(a) Deficiencies in public facilities serving existing development and the means by which existing deficiencies will be eliminated within a reasonable period of time;
(b) Additional demands placed on existing public facilities by new development; and
(c) Additional public facility improvements required to serve new development.
(5) The local ordinance by which impact fees are imposed must conform to the provisions of RCW 82.02.060. The department recommends that jurisdictions include the authorized exemption for low-income housing.
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