BILL ANALYSIS
HB 2806
TITLE OF THE BILL: Providing for integration of shoreline master programs into growth management planning.
Brief Summary:
CIncludes shorelines of the state within the definition of critical areas in the
Growth Management Act (GMA).
C Requires local governments, within one year, to adopt interim critical areas
regulations to protect shorelines of the state, including consideration of strategies to
protect commercial shellfish beds near shorelines and penalties for violations.
C Retains requirement for DOE approval of local shoreline master program components
only for shorelines of state-wide significance and specifies regulations protecting
shorelines are to be adopted in the same manner as critical area ordinances.
C Makes shoreline master program guidelines mandatory only for shorelines of state-wide
significance and allows local governments to adopt "alternative techniques" for
protecting shorelines.
C Requires the Department of Community, Trade and Economic Development to establish
a formal periodic review schedule, based on specified factors, for GMA critical areas
and natural resource lands to be reviewed every five years and for other comprehensive
plan and development regulations components and urban growth area designations to be reviewed every ten years.
C Allows county-wide planning policies to be amended to include policies related to
watershed planning and salmon recovery efforts.
SPONSORS: Representatives G. Chandler, Doumit, Mulliken, Buck, Grant, Mastin, Hatfield and Parlette.
HEARING DATE: Monday, January 31, 2000.
EFFECTIVE DATE: Ninety days after adjournment of session in which bill is passed.
FISCAL NOTE: Requested January 21, 2000.
ANALYSIS PREPARED BY: Caroleen Dineen (786-7156).
|
|
|
BACKGROUND:
Shoreline Management Act
The Shoreline Management Act (SMA) was enacted in 1971 as Chapter 90.58 RCW. The SMA requires counties and cities to adopt local shoreline master programs regulating land use activities in shorelines of the state and to enforce approved programs within their jurisdictions. AShorelines of the state@ are defined to include both "shorelines" and "shorelines of statewide significance" as defined by the SMA. "Shorelines" are defined to include all water areas, including reservoirs, and their associated Ashorelands@ except:
!shorelines of statewide significance [separately defined to include specific shoreline areas and larger lakes and rivers meeting specified criteria];
!shorelines (and their wetlands) on segments of streams upstream of a point at which the mean annual flow is less than or equal to 20 cubic feet per second (cfs); and
!shorelines (and their wetlands) on lakes fewer than 20 acres in size.
"Shorelands" include the lands extending landward for 200 feet in all directions from the ordinary high water mark as well as floodways and contiguous floodplain areas landward 200 feet from the floodways. "Shorelands" also include all wetlands and river deltas associated with streams, lakes and tidal waters subject to the SMA.
The SMA requires the Department of Ecology (DOE) to adopt guidelines for local governments to use when developing local shoreline master programs. Local governments must develop or amend shoreline master programs consistent with the DOE guidelines within 24 months after the DOE guidelines are adopted. The SMA defines the Astate master program@ as the cumulative total of all local master programs approved by the DOE.
The DOE considers the adopted guidelines and SMA requirements when reviewing and approving local shoreline master programs. DOE=s decision approving or rejecting a local shoreline master program may be appealed to the Shorelines Hearings Board for non-GMA jurisdictions or to the Growth Management Hearings Board for GMA jurisdictions.
When approved, a local master program regulates shoreline uses and permit approvals within the local jurisdiction. The SMA requires a property owner or developer to obtain a substantial development permit for certain developments with total cost or fair market value exceeding $2,500 and developments materially interfering with normal public shoreline use. Certain exemptions exist to this permit requirement, including specified activities relating to repair or maintenance, bulkhead construction, or single-family residence construction. The SMA requires local master programs to allow for variances and conditional use permits to avoid creating unnecessary hardships or thwarting SMA policies.
The SMA specifies standards for local governments to review and approve permit applications. In addition to other requirements, local governments must notify the DOE of all SMA permit decisions. The DOE has authority to approve conditional use and variance permits issued by local governments.
Appeals of shoreline permit decisions and DOE rules and regulations are reviewed by the shorelines hearings board. The shorelines hearings board reviews permit decisions "de novo," meaning the proceedings are not limited to a review of the local government record (as with growth management hearings board appeals) but can involve testimony and other proceedings.
Growth Management Act
The Growth Management Act (GMA) was enacted in 1990 and 1991 as Chapter 36.70A RCW. The GMA requires certain counties and the cities in those counties to plan according to statutory requirements and specifies other counties may choose to plan under the GMA. All jurisdictions must designate natural resource lands and designate and protect critical areas, regardless of whether they plan under the GMA. ACritical areas@ are defined in the GMA to include wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. The Department of Community, Trade and Economic Development (CTED) develops minimum guidelines to guide the classification of critical areas and natural resource lands.
Among other requirements, each county and city planning under RCW 36.70A.040 (GMA jurisdiction) is required to designate urban growth areas and to adopt a comprehensive plan. GMA jurisdictions must also adopt development regulations to implement their comprehensive plans. By September 1, 2002, and at least every five years thereafter, GMA jurisdictions are required to review their comprehensive plans and development regulations for consistency with GMA requirements and to revise their comprehensive plans and development regulations if necessary.
Legislation enacted in 1995 specified SMA master program goals and policies are considered an element of GMA comprehensive plans and other parts of master programs are considered part of GMA development regulations. The 1995 legislation also created the Land Use Petition Act (LUPA), replacing the traditional writ of certiorari procedure for appeals of development permit decisions with an appeal process including specified timelines and other requirements.
Legislation enacted in 1998 authorized local governments to conduct watershed planning. The scope of the watershed planning must include water quantity elements, and may include elements pertaining to water quality, the coordination or development of protection or enhancement of fish habitat, and the setting of minimum instream flows in the watershed. Watershed planning may be conducted based on a single watershed resource inventory area (WRIA) or on a multi-WRIA basis.
SUMMARY:
Shoreline Management Act
Critical areas are defined in the Growth Management Act (GMA) to include "shorelines of the state" as defined in the Shoreline Management Act (SMA) [i.e., including both "shorelines" and "shorelines of state-wide significance"]. All shorelines of the state must be designated as critical areas under the GMA. The SMA provisions apply to "shorelines" as defined in the SMA except when made expressly applicable only to shorelines of state-wide significance.
"Master programs" are defined to include local critical areas ordinances pertaining to shorelines and provisions adopted or approved by the DOE pertaining to shorelines of state-wide significance. The state master program includes both master programs approved by the DOE and those adopted by local governments pertaining to shorelines. Master programs related to "shorelines" as defined in the SMA are adopted according to the GMA's critical area requirements.
The DOE's capacity with regard to shorelines of state-wide significance continues to include supportive and review roles, while the DOE is to act primarily in a supportive capacity for implementation of local government policies related to shorelines. The DOE may review and comment on proposed critical area ordinances pertaining to shorelines but does not have authority to approve these ordinances.
The shoreline master program guidelines adopted by the DOE (Guidelines) are defined as standards to assist in implementation of SMA policy. The Guidelines are mandatory standards for shoreline master programs related to shorelines of state-wide significance, except as variations are allowed by the DOE. The components of local shoreline master programs related to shorelines of state-wide significance must be submitted to and approved by the DOE as required by the SMA. These master programs components become effective when approved by the DOE.
For shorelines, the Guidelines are recommendations for local governments. Local governments must consider the Guidelines within 24 months after their adoption. Local governments, however, may develop "alternative techniques" to protect shorelines as long as the alternative techniques: (1) actually protect shorelines; (2) are consistent with SMA policy as expressed in RCW 90.58.020; and (3) are supported by best available science. Master program provisions related to shorelines become effective when adopted in GMA critical areas ordinances, which are presumed valid upon adoption.
Appeal of master programs adopted by jurisdictions planning under RCW 36.70A.040 (GMA jurisdictions), including components related to shorelines of state-wide significance and critical area ordinance provisions relating to shorelines, continue to be appealed to the growth management hearings boards. For non-GMA jurisdictions, appeals of master program components related to shorelines of state-wide significance and adoption of critical areas ordinances pertaining to shorelines are appealed to the shorelines hearings board within sixty days after publication as provided in the GMA appeal procedures.
SMA permit appeal provisions are amended to specify the appellant, rather than the aggrieved local government, has the burden of proof on appeal and to allow any aggrieved party (rather than the DOE and the local government) to appeal a decision of the shoreline hearings board to superior court.
Growth Management Act
Counties and cities containing "shorelines of the state" as defined in the SMA that were not previously designated as critical areas under the GMA must adopt interim development regulations to protect shorelines of the state within one year. These interim development regulations may remain in effect until the GMA comprehensive plans and development regulations are reviewed and revised for compliance with GMA requirements. In developing these interim development regulations, counties and cities must consider strategies to protect any commercial shellfish beds located near the shoreline. These interim development regulations and any existing critical area ordinances pertaining to shorelines must include penalties for violations.
Each county and city adopting a critical areas ordinance to protect shorelines must notify the DOE of its intent to adopt the ordinance and provide a copy of the ordinance to the DOE for its review and comment at least sixty days before final adoption.
The Department of Community, Trade and Economic Development (CTED) is required to establish a schedule for periodic formal reviews by all GMA jurisdictions of GMA comprehensive plans and development regulations and of urban growth area designations. In developing the schedule, CTED must consider counties' population and growth rate, the date comprehensive plans and development regulations were adopted or last revised, and the resources available to counties and cities to conduct formal reviews.
The review schedule adopted by CTED must provide for formal periodic review of provisions related to critical areas and natural resource lands approximately once every five years. For other provisions, the schedule must provide for periodic formal review approximately once every ten years. The first review is to be scheduled according to the date: (1) the GMA jurisdiction initially adopted its comprehensive plan and development regulations; or (2) amendments to the comprehensive plan and/or development regulations, adopted after a finding of noncompliance, were found by a growth management hearings board to be in compliance with the GMA.
County-wide planning policies adopted under the GMA may be revised to reflect changes based on the periodic formal review conducted according to the CTED schedule. County-wide planning policies also may include policies implementing watershed planning and policies developed in response to federal Endangered Species Act listings. This authority is provided to encourage further integration of local planning efforts and does not create a cause of action for amending or failing to amend any development regulations or comprehensive plan provisions following amendment of county-wide planning policies.
"Natural resource lands" are defined for purposes of the GMA to mean agricultural land, forest land, and mineral resource land.
Various technical changes are made to effectuate the provisions integrating shoreline management and growth management planning processes.