BILL REQ. #: S-3660.1
| State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 01/18/12. Referred to Committee on Energy, Natural Resources & Marine Waters.
AN ACT Relating to streamlining the shoreline management act to avoid duplicative review; amending RCW 90.58.050, 90.58.080, 90.58.100, 90.58.120, 90.58.140, 90.58.190, 90.58.195, 90.58.580, 90.58.590, and 90.58.620; and reenacting and amending RCW 90.58.030 and 90.58.090.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 90.58.030 and 2010 c 107 s 3 are each reenacted and
amended to read as follows:
As used in this chapter, unless the context otherwise requires, the
following definitions and concepts apply:
(1) Administration:
(a) "Department" means the department of ecology;
(b) "Director" means the director of the department of ecology;
(c) "Hearings board" means the shorelines hearings board
established by this chapter;
(d) "Local government" means any county, incorporated city, or town
which contains within its boundaries any lands or waters subject to
this chapter;
(e) "Person" means an individual, partnership, corporation,
association, organization, cooperative, public or municipal
corporation, or agency of the state or local governmental unit however
designated.
(2) Geographical:
(a) "Extreme low tide" means the lowest line on the land reached by
a receding tide;
(b) "Floodway" means the area, as identified in a master program,
that either: (i) Has been established in federal emergency management
agency flood insurance rate maps or floodway maps; or (ii) consists of
those portions of a river valley lying streamward from the outer limits
of a watercourse upon which flood waters are carried during periods of
flooding that occur with reasonable regularity, although not
necessarily annually, said floodway being identified, under normal
condition, by changes in surface soil conditions or changes in types or
quality of vegetative ground cover condition, topography, or other
indicators of flooding that occurs with reasonable regularity, although
not necessarily annually. Regardless of the method used to identify
the floodway, the floodway shall not include those lands that can
reasonably be expected to be protected from flood waters by flood
control devices maintained by or maintained under license from the
federal government, the state, or a political subdivision of the state;
(c) "Ordinary high water mark" on all lakes, streams, and tidal
water is that mark that will be found by examining the bed and banks
and ascertaining where the presence and action of waters are so common
and usual, and so long continued in all ordinary years, as to mark upon
the soil a character distinct from that of the abutting upland, in
respect to vegetation as that condition exists on June 1, 1971, as it
may naturally change thereafter, or as it may change thereafter in
accordance with permits issued by a local government or the department:
PROVIDED, That in any area where the ordinary high water mark cannot be
found, the ordinary high water mark adjoining salt water shall be the
line of mean higher high tide and the ordinary high water mark
adjoining freshwater shall be the line of mean high water;
(d) "Shorelands" or "shoreland areas" means those lands extending
landward for two hundred feet in all directions as measured on a
horizontal plane from the ordinary high water mark; floodways and
contiguous floodplain areas landward two hundred feet from such
floodways; and all wetlands and river deltas associated with the
streams, lakes, and tidal waters which are subject to the provisions of
this chapter; the same to be designated as to location by the
department of ecology.
(i) Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such
portion includes, as a minimum, the floodway and the adjacent land
extending landward two hundred feet therefrom.
(ii) Any city or county may also include in its master program land
necessary for buffers for critical areas, as defined in chapter 36.70A
RCW, that occur within shorelines of the state, provided that forest
practices regulated under chapter 76.09 RCW, except conversions to
nonforest land use, on lands subject to the provisions of this
subsection (2)(d)(ii) are not subject to additional regulations under
this chapter;
(e) "Shorelines" means all of the water areas of the state,
including reservoirs, and their associated shorelands, together with
the lands underlying them; except (i) shorelines of statewide
significance; (ii) shorelines on segments of streams upstream of a
point where the mean annual flow is twenty cubic feet per second or
less and the wetlands associated with such upstream segments; and (iii)
shorelines on lakes less than twenty acres in size and wetlands
associated with such small lakes;
(f) "Shorelines of statewide significance" means the following
shorelines of the state:
(i) The area between the ordinary high water mark and the western
boundary of the state from Cape Disappointment on the south to Cape
Flattery on the north, including harbors, bays, estuaries, and inlets;
(ii) Those areas of Puget Sound and adjacent salt waters and the
Strait of Juan de Fuca between the ordinary high water mark and the
line of extreme low tide as follows:
(A) Nisqually Delta -- from DeWolf Bight to Tatsolo Point,
(B) Birch Bay -- from Point Whitehorn to Birch Point,
(C) Hood Canal -- from Tala Point to Foulweather Bluff,
(D) Skagit Bay and adjacent area -- from Brown Point to Yokeko Point,
and
(E) Padilla Bay -- from March Point to William Point;
(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and
adjacent salt waters north to the Canadian line and lying seaward from
the line of extreme low tide;
(iv) Those lakes, whether natural, artificial, or a combination
thereof, with a surface acreage of one thousand acres or more measured
at the ordinary high water mark;
(v) Those natural rivers or segments thereof as follows:
(A) Any west of the crest of the Cascade range downstream of a
point where the mean annual flow is measured at one thousand cubic feet
per second or more,
(B) Any east of the crest of the Cascade range downstream of a
point where the annual flow is measured at two hundred cubic feet per
second or more, or those portions of rivers east of the crest of the
Cascade range downstream from the first three hundred square miles of
drainage area, whichever is longer;
(vi) Those shorelands associated with (i), (ii), (iv), and (v) of
this subsection (2)(f);
(g) "Shorelines of the state" are the total of all "shorelines" and
"shorelines of statewide significance" within the state;
(h) "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 to mitigate the conversion of wetlands.
(3) Procedural terms:
(a) "Development" means a use consisting of the construction or
exterior alteration of structures; dredging; drilling; dumping;
filling; removal of any sand, gravel, or minerals; bulkheading; driving
of piling; placing of obstructions; or any project of a permanent or
temporary nature which interferes with the normal public use of the
surface of the waters overlying lands subject to this chapter at any
state of water level;
(b) "Guidelines" means those standards adopted to implement the
policy of this chapter for regulation of use of the shorelines of the
state prior to adoption of master programs. Such standards shall also
provide criteria to local governments and the department in developing
master programs;
(c) "Master program" shall mean the comprehensive use plan for a
described area, and the use regulations together with maps, diagrams,
charts, or other descriptive material and text, a statement of desired
goals, and standards developed in accordance with the policies
enunciated in RCW 90.58.020.
(d) "Comprehensive master program update" means a master program
that fully achieves the procedural and substantive requirements of the
department guidelines effective January 17, 2004, as now or hereafter
amended;
(((d))) (e) "State master program" is the cumulative total of all
master programs ((approved or)) adopted by the ((department of
ecology)) local government;
(((e))) (f) "Substantial development" shall mean any development of
which the total cost or fair market value exceeds five thousand
dollars, or any development which materially interferes with the normal
public use of the water or shorelines of the state. The dollar
threshold established in this subsection (3)(((e)))(f) must be adjusted
for inflation by the office of financial management every five years,
beginning July 1, 2007, based upon changes in the consumer price index
during that time period. "Consumer price index" means, for any
calendar year, that year's annual average consumer price index,
Seattle, Washington area, for urban wage earners and clerical workers,
all items, compiled by the bureau of labor and statistics, United
States department of labor. The office of financial management must
calculate the new dollar threshold and transmit it to the office of the
code reviser for publication in the Washington State Register at least
one month before the new dollar threshold is to take effect. The
following shall not be considered substantial developments for the
purpose of this chapter:
(i) Normal maintenance or repair of existing structures or
developments, including damage by accident, fire, or elements;
(ii) Construction of the normal protective bulkhead common to
single-family residences;
(iii) Emergency construction necessary to protect property from
damage by the elements;
(iv) Construction and practices normal or necessary for farming,
irrigation, and ranching activities, including agricultural service
roads and utilities on shorelands, and the construction and maintenance
of irrigation structures including but not limited to head gates,
pumping facilities, and irrigation channels. A feedlot of any size,
all processing plants, other activities of a commercial nature,
alteration of the contour of the shorelands by leveling or filling
other than that which results from normal cultivation, shall not be
considered normal or necessary farming or ranching activities. A
feedlot shall be an enclosure or facility used or capable of being used
for feeding livestock hay, grain, silage, or other livestock feed, but
shall not include land for growing crops or vegetation for livestock
feeding and/or grazing, nor shall it include normal livestock wintering
operations;
(v) Construction or modification of navigational aids such as
channel markers and anchor buoys;
(vi) Construction on shorelands by an owner, lessee, or contract
purchaser of a single-family residence for his own use or for the use
of his or her family, which residence does not exceed a height of
thirty-five feet above average grade level and which meets all
requirements of the state agency or local government having
jurisdiction thereof, other than requirements imposed pursuant to this
chapter;
(vii) Construction of a dock, including a community dock, designed
for pleasure craft only, for the private noncommercial use of the
owner, lessee, or contract purchaser of single and multiple-family
residences. This exception applies if either: (A) In salt waters, the
fair market value of the dock does not exceed two thousand five hundred
dollars; or (B) in freshwaters, the fair market value of the dock does
not exceed ten thousand dollars, but if subsequent construction having
a fair market value exceeding two thousand five hundred dollars occurs
within five years of completion of the prior construction, the
subsequent construction shall be considered a substantial development
for the purpose of this chapter;
(viii) Operation, maintenance, or construction of canals,
waterways, drains, reservoirs, or other facilities that now exist or
are hereafter created or developed as a part of an irrigation system
for the primary purpose of making use of system waters, including
return flow and artificially stored groundwater for the irrigation of
lands;
(ix) The marking of property lines or corners on state owned lands,
when such marking does not significantly interfere with normal public
use of the surface of the water;
(x) Operation and maintenance of any system of dikes, ditches,
drains, or other facilities existing on September 8, 1975, which were
created, developed, or utilized primarily as a part of an agricultural
drainage or diking system;
(xi) Site exploration and investigation activities that are
prerequisite to preparation of an application for development
authorization under this chapter, if:
(A) The activity does not interfere with the normal public use of
the surface waters;
(B) The activity will have no significant adverse impact on the
environment including, but not limited to, fish, wildlife, fish or
wildlife habitat, water quality, and aesthetic values;
(C) The activity does not involve the installation of a structure,
and upon completion of the activity the vegetation and land
configuration of the site are restored to conditions existing before
the activity;
(D) A private entity seeking development authorization under this
section first posts a performance bond or provides other evidence of
financial responsibility to the local jurisdiction to ensure that the
site is restored to preexisting conditions; and
(E) The activity is not subject to the permit requirements of RCW
90.58.550;
(xii) The process of removing or controlling an aquatic noxious
weed, as defined in RCW 17.26.020, through the use of an herbicide or
other treatment methods applicable to weed control that are recommended
by a final environmental impact statement published by the department
of agriculture or the department jointly with other state agencies
under chapter 43.21C RCW.
Sec. 2 RCW 90.58.050 and 1995 c 347 s 303 are each amended to
read as follows:
This chapter establishes a cooperative program of shoreline
management between local government and the state. Local government
shall have the primary responsibility for initiating the planning
required by this chapter and administering the regulatory program
consistent with the policy and provisions of this chapter. The
department shall act primarily in a supportive ((and review)) capacity
with an emphasis on providing assistance to local government and on
((insuring)) ensuring compliance with the policy and provisions of this
chapter.
Sec. 3 RCW 90.58.080 and 2011 c 353 s 13 are each amended to read
as follows:
(1) Local governments shall develop or amend a master program for
regulation of uses of the shorelines of the state consistent with the
required elements of the guidelines adopted by the department in
accordance with the schedule established by this section.
(2)(a) Subject to the provisions of subsections (5) and (6) of this
section, each local government subject to this chapter shall develop or
amend its master program for the regulation of uses of shorelines
within its jurisdiction according to the following schedule:
(i) On or before December 1, 2005, for the city of Port Townsend,
the city of Bellingham, the city of Everett, Snohomish county, and
Whatcom county;
(ii) On or before December 1, 2009, for King county and the cities
within King county greater in population than ten thousand;
(iii) Except as provided by (a)(i) and (ii) of this subsection, on
or before December 1, 2011, for Clallam, Clark, Jefferson, King,
Kitsap, Pierce, Snohomish, Thurston, and Whatcom counties and the
cities within those counties;
(iv) On or before December 1, 2012, for Cowlitz, Island, Lewis,
Mason, San Juan, Skagit, and Skamania counties and the cities within
those counties;
(v) On or before December 1, 2013, for Benton, Chelan, Douglas,
Grant, Kittitas, Spokane, and Yakima counties and the cities within
those counties; and
(vi) On or before December 1, 2014, for Adams, Asotin, Columbia,
Ferry, Franklin, Garfield, Grays Harbor, Klickitat, Lincoln, Okanogan,
Pacific, Pend Oreille, Stevens, Wahkiakum, Walla Walla, and Whitman
counties and the cities within those counties.
(b) Nothing in this subsection (2) shall preclude a local
government from developing or amending its master program prior to the
dates established by this subsection (2).
(3)(a) Following ((approval)) adoption by the ((department)) local
government of a new or amended master program, local governments
required to develop or amend master programs on or before December 1,
2009, as provided by subsection (2)(a)(i) and (ii) of this section,
shall be deemed to have complied with the schedule established by
subsection (2)(a)(iii) of this section and shall not be required to
complete master program amendments until the applicable dates
established by subsection (4)(b) of this section. Any jurisdiction
listed in subsection (2)(a)(i) of this section that has a new or
amended master program approved by the department on or after March 1,
2002, but before July 27, 2003, shall not be required to complete
master program amendments until the applicable date provided by
subsection (4)(b) of this section.
(b) Following ((approval)) adoption by the ((department)) local
government of a new or amended master program, local governments
choosing to develop or amend master programs on or before December 1,
2009, shall be deemed to have complied with the schedule established by
subsection (2)(a)(iii) through (vi) of this section and shall not be
required to complete master program amendments until the applicable
dates established by subsection (4)(b) of this section.
(4)(a) Following the updates required by subsection (2) of this
section, local governments shall conduct a review of their master
programs at least once every eight years as required by (b) of this
subsection. Following the review required by this subsection (4),
local governments shall, if necessary, revise their master programs.
The purpose of the review is:
(i) To ((assure)) ensure that the master program complies with
applicable law and guidelines in effect at the time of the review; and
(ii) To ((assure)) ensure consistency of the master program with
the local government's comprehensive plan and development regulations
adopted under chapter 36.70A RCW, if applicable, and other local
requirements.
(b) Counties and cities shall take action to review and, if
necessary, revise their master programs as required by (a) of this
subsection as follows:
(i) On or before June 30, 2019, and every eight years thereafter,
for King, Pierce, and Snohomish counties and the cities within those
counties;
(ii) On or before June 30, 2020, and every eight years thereafter,
for Clallam, Clark, Island, Jefferson, Kitsap, Mason, San Juan, Skagit,
Thurston, and Whatcom counties and the cities within those counties;
(iii) On or before June 30, 2021, and every eight years thereafter,
for Benton, Chelan, Cowlitz, Douglas, Grant, Kittitas, Lewis, Skamania,
Spokane, and Yakima counties and the cities within those counties; and
(iv) On or before June 30, 2022, and every eight years thereafter,
for Adams, Asotin, Columbia, Ferry, Franklin, Garfield, Grant, Grays
Harbor, Klickitat, Lincoln, Okanogan, Pacific, Pend Oreille, Stevens,
Wahkiakum, Walla Walla, and Whitman counties and the cities within
those counties.
(5) In meeting the update requirements of subsection (2) of this
section, local governments are encouraged to begin the process of
developing or amending their master programs early and are eligible for
grants from the department as provided by RCW 90.58.250, subject to
available funding. Except for those local governments listed in
subsection (2)(a)(i) and (ii) of this section, the deadline for
completion of the new or amended master programs shall be two years
after the date the grant is approved by the department. Subsequent
master program review dates shall not be altered by the provisions of
this subsection.
(6) In meeting the update requirements of subsection (2) of this
section, the following shall apply:
(a) Grants to local governments for developing and amending master
programs pursuant to the schedule established by this section shall be
provided at least two years before the adoption dates specified in
subsection (2) of this section. To the extent possible, the department
shall allocate grants within the amount appropriated for such purposes
to provide reasonable and adequate funding to local governments that
have indicated their intent to develop or amend master programs during
the biennium according to the schedule established by subsection (2) of
this section. Any local government that applies for but does not
receive funding to comply with the provisions of subsection (2) of this
section may delay the development or amendment of its master program
until the following biennium.
(b) Local governments with delayed compliance dates as provided in
(a) of this subsection shall be the first priority for funding in
subsequent biennia, and the development or amendment compliance
deadline for those local governments shall be two years after the date
of grant approval.
(c) Failure of the local government to apply in a timely manner for
a master program development or amendment grant in accordance with the
requirements of the department shall not be considered a delay
resulting from the provisions of (a) of this subsection.
(7) In meeting the update requirements of subsection (2) of this
section, all local governments subject to the requirements of this
chapter that have not developed or amended master programs on or after
March 1, 2002, shall, no later than December 1, 2014, develop or amend
their master programs to comply with guidelines adopted by the
department after January 1, 2003.
(8) In meeting the update requirements of subsection (2) of this
section, local governments may be provided an additional year beyond
the deadlines in this section to complete their master program or
amendment. The department shall grant the request if it determines
that the local government is likely to adopt or amend its master
program within the additional year.
Sec. 4 RCW 90.58.090 and 2011 c 353 s 14 and 2011 c 277 s 2 are
each reenacted and amended to read as follows:
(1) A master program, segment of a master program, or an amendment
to a master program shall become effective when approved by the
((department as provided in subsection (7) of this section))
legislative body of the local government. ((Within the time period
provided in RCW 90.58.080,)) Each local government shall ((have
submitted)) adopt a master program, either totally or by segments, for
all shorelines of the state within its jurisdiction ((to the department
for review and approval)) within the time period provided in RCW
90.58.080.
((The department shall strive to achieve final action on a
submitted master program within one hundred eighty days of receipt and
shall post an annual assessment related to this performance benchmark
on the agency web site.))
(2) Upon receipt of a proposed master program or amendment, the
department shall:
(a) Provide notice to and opportunity for written comment by all
interested parties of record as a part of the local government review
process for the proposal and to all persons, groups, and agencies that
have requested in writing notice of proposed master programs or
amendments generally or for a specific area, subject matter, or issue.
The comment period shall be at least thirty days, unless the department
determines that the level of complexity or controversy involved
supports a shorter period;
(b) In the department's discretion, conduct a public hearing during
the thirty-day comment period in the jurisdiction proposing the master
program or amendment;
(c) Within fifteen days after the close of public comment, request
the local government to review the issues identified by the public,
interested parties, groups, and agencies and provide a written response
as to how the proposal addresses the identified issues;
(d) Within thirty days after receipt of the local government
response pursuant to (c) of this subsection, make written findings and
conclusions regarding the consistency of the proposal with the policy
of RCW 90.58.020 and the applicable guidelines, provide a response to
the issues identified in (c) of this subsection, and either approve the
proposal as submitted, recommend specific changes necessary to make the
proposal approvable, or deny approval of the proposal in those
instances where no alteration of the proposal appears likely to be
consistent with the policy of RCW 90.58.020 and the applicable
guidelines. The written findings and conclusions shall be provided to
the local government, and made available to all interested persons,
parties, groups, and agencies of record on the proposal;
(e) If the department recommends changes to the proposed master
program or amendment, within thirty days after the department mails the
written findings and conclusions to the local government, the local
government may:
(i) Agree to the proposed changes by written notice to the
department; or
(ii) Submit an alternative proposal. If, in the opinion of the
department, the alternative is consistent with the purpose and intent
of the changes originally submitted by the department and with this
chapter it shall approve the changes and provide notice to all
recipients of the written findings and conclusions. If the department
determines the proposal is not consistent with the purpose and intent
of the changes proposed by the department, the department may resubmit
the proposal for public and agency review pursuant to this section or
reject the proposal.
(3) The department shall approve the segment of a master program
relating to shorelines unless it determines that the submitted segments
are not consistent with the policy of RCW 90.58.020 and the applicable
guidelines.
(4) The department shall approve the segment of a master program
relating to critical areas as defined by RCW 36.70A.030(5) provided the
master program segment is consistent with RCW 90.58.020 and applicable
shoreline guidelines, and if the segment provides a level of protection
of critical areas at least equal to that provided by the local
government's critical areas ordinances adopted and thereafter amended
pursuant to RCW 36.70A.060(2).
(5) The department shall approve those segments of the master
program relating to shorelines of statewide significance only after
determining the program provides the optimum implementation of the
policy of this chapter to satisfy the statewide interest. If the
department does not approve a segment of a local government master
program relating to a shoreline of statewide significance, the
department may develop and by rule adopt an alternative to the local
government's proposal.
(6) In the event a local government has not complied with the
requirements of RCW 90.58.070 it may thereafter upon written notice to
the department elect to adopt a master program for the shorelines
within its jurisdiction, in which event it shall comply with the
provisions established by this chapter for the adoption of a master
program for such shorelines.
(2) Upon ((approval)) adoption of such master program by the
((department)) local government, it shall supersede such master program
as may have been adopted by the ((department)) local government for
such shorelines.
(((7) A master program or amendment to a master program takes
effect when and in such form as approved or adopted by the department.
The effective date is fourteen days from the date of the department's
written notice of final action to the local government stating the
department has approved or rejected the proposal.))
(3) For master programs adopted by rule, the effective date is
governed by RCW 34.05.380. ((The department's written notice to the
local government must conspicuously and plainly state that it is the
department's final decision and that there will be no further
modifications to the proposal.))
(a) Shoreline master programs that were adopted by the department
prior to July 22, 1995, in accordance with the provisions of this
section then in effect, shall be deemed approved by the department in
accordance with the provisions of this section that became effective on
that date.
(b) The department shall maintain a record of each master program,
the action taken on any proposal for adoption or amendment of the
master program, and any appeal of the department's action. The
department's approved document of record constitutes the official
master program.
(8) Promptly after approval or disapproval of a local government's
shoreline master program or amendment, the department shall publish a
notice consistent with RCW 36.70A.290 that the shoreline master program
or amendment has been approved or disapproved. This notice must be
filed for all shoreline master programs or amendments. If the notice
is for a local government that does not plan under RCW 36.70A.040, the
department must, on the day the notice is published, notify the
legislative authority of the applicable local government by telephone
or electronic means, followed by written communication as necessary, to
ensure that the local government has received the full written decision
of the approval or disapproval.
Sec. 5 RCW 90.58.100 and 2009 c 421 s 9 are each amended to read
as follows:
(1) The master programs provided for in this chapter, when adopted
((or approved)) by ((the department)) a local government shall
constitute use regulations for the various shorelines of the state. In
preparing the master programs, and any amendments thereto, the
((department and)) local government((s)) shall to the extent feasible:
(a) Utilize a systematic interdisciplinary approach which will
((insure)) ensure the integrated use of the natural and social sciences
and the environmental design arts;
(b) Consult with and obtain the comments of any federal, state,
regional, or local agency having any special expertise with respect to
any environmental impact;
(c) Consider all plans, studies, surveys, inventories, and systems
of classification made or being made by federal, state, regional, or
local agencies, by private individuals, or by organizations dealing
with pertinent shorelines of the state;
(d) Conduct or support such further research, studies, surveys, and
interviews as are deemed necessary;
(e) Utilize all available information regarding hydrology,
geography, topography, ecology, economics, and other pertinent data;
(f) Employ, when feasible, all appropriate, modern scientific data
processing and computer techniques to store, index, analyze, and manage
the information gathered.
(2) The master programs shall include, when appropriate, the
following:
(a) An economic development element for the location and design of
industries, projects of statewide significance, transportation
facilities, port facilities, tourist facilities, commerce and other
developments that are particularly dependent on their location on or
use of the shorelines of the state;
(b) A public access element making provision for public access to
publicly owned areas;
(c) A recreational element for the preservation and enlargement of
recreational opportunities, including but not limited to parks,
tidelands, beaches, and recreational areas;
(d) A circulation element consisting of the general location and
extent of existing and proposed major thoroughfares, transportation
routes, terminals, and other public utilities and facilities, all
correlated with the shoreline use element;
(e) A use element which considers the proposed general distribution
and general location and extent of the use on shorelines and adjacent
land areas for housing, business, industry, transportation,
agriculture, natural resources, recreation, education, public buildings
and grounds, and other categories of public and private uses of the
land;
(f) A conservation element for the preservation of natural
resources, including but not limited to scenic vistas, aesthetics, and
vital estuarine areas for fisheries and wildlife protection;
(g) An historic, cultural, scientific, and educational element for
the protection and restoration of buildings, sites, and areas having
historic, cultural, scientific, or educational values;
(h) An element that gives consideration to the statewide interest
in the prevention and minimization of flood damages; and
(i) Any other element deemed appropriate or necessary to effectuate
the policy of this chapter.
(3) The master programs shall include such map or maps, descriptive
text, diagrams and charts, or other descriptive material as are
necessary to provide for ease of understanding.
(4) Master programs will reflect that state-owned shorelines of the
state are particularly adapted to providing wilderness beaches,
ecological study areas, and other recreational activities for the
public and will give appropriate special consideration to same.
(5) Each master program shall contain provisions to allow for the
varying of the application of use regulations of the program, including
provisions for permits for conditional uses and variances, to
((insure)) ensure that strict implementation of a program will not
create unnecessary hardships or thwart the policy enumerated in RCW
90.58.020. Any such varying shall be allowed only if extraordinary
circumstances are shown and the public interest suffers no substantial
detrimental effect. The concept of this subsection shall be
incorporated in the rules adopted by the department relating to the
establishment of a permit system as provided in RCW 90.58.140(3).
(6) Each master program shall contain standards governing the
protection of single-family residences and appurtenant structures
against damage or loss due to shoreline erosion. The standards shall
govern the issuance of substantial development permits for shoreline
protection, including structural methods such as construction of
bulkheads, and nonstructural methods of protection. The standards
shall provide for methods which achieve effective and timely protection
against loss or damage to single-family residences and appurtenant
structures due to shoreline erosion. The standards shall provide a
preference for permit issuance for measures to protect single-family
residences occupied prior to January 1, 1992, where the proposed
measure is designed to minimize harm to the shoreline natural
environment.
Sec. 6 RCW 90.58.120 and 1995 c 347 s 308 are each amended to
read as follows:
((All rules, regulations, designations, and guidelines, issued by
the department, and master programs and amendments adopted by the
department pursuant to RCW 90.58.070(2) or 90.58.090(4) shall be
adopted or approved in accordance with the provisions of RCW 34.05.310
through 34.05.395 insofar as such provisions are not inconsistent with
the provisions of this chapter. In addition:))
(1) Each local government shall establish and broadly disseminate
to the public a public participation program identifying procedures
providing for early and continuous public participation in the
development and amendment of master programs. The procedures must
provide for broad dissemination of proposals and alternatives,
opportunity for written comments, public meetings after effective
notice, provision for open discussion, communication programs,
information services, and consideration of and response to public
comments. Errors in exact compliance with the established program and
procedures do not render the master program invalid if the spirit of
the program and procedures is observed.
(2) Prior to the adoption by ((the department)) a local government
of a master program, or portion thereof ((pursuant to RCW 90.58.070(2)
or 90.58.090(4))), at least one public hearing shall be held in each
county affected by a program or portion thereof for the purpose of
obtaining the views and comments of the public. Notice of each such
hearing shall be published at least once in each of the three weeks
immediately preceding the hearing in one or more newspapers of general
circulation in the county in which the hearing is to be held.
(((2))) (3) All guidelines, regulations, designations, or master
programs adopted or approved under this chapter shall be available for
public inspection at the office of the ((department or the))
appropriate county and city. ((The terms "adopt" and "approve" for
purposes of this section, shall include modifications and rescission of
guidelines.))
(4) Promptly after adoption of a local government's shoreline
master program or amendment, the local government planning under RCW
36.70A.040 shall publish a notice consistent with RCW 36.70A.290 that
the shoreline master program or amendment has been adopted. This
notice must be filed for all shoreline master programs or amendments.
A local government that does not plan under RCW 36.70A.040 must publish
notice on the date the shoreline master program or amendment has been
adopted in one or more newspapers of general circulation in the county.
Sec. 7 RCW 90.58.140 and 2011 c 277 s 3 are each amended to read
as follows:
(1) A development shall not be undertaken on the shorelines of the
state unless it is consistent with the policy of this chapter and,
after adoption ((or approval, as appropriate)), the applicable
guidelines, rules, or master program.
(2) A substantial development shall not be undertaken on shorelines
of the state without first obtaining a permit from the government
entity having administrative jurisdiction under this chapter.
A permit shall be granted:
(a) From June 1, 1971, until such time as an applicable master
program has become effective, only when the development proposed is
consistent with: (i) The policy of RCW 90.58.020; and (ii) after their
adoption, the guidelines and rules of the department; and (iii) so far
as can be ascertained, the master program being developed for the area;
(b) After adoption ((or approval, as appropriate,)) by ((the
department)) a local government of an applicable master program, only
when the development proposed is consistent with the applicable master
program and this chapter.
(3) The local government shall establish a program, consistent with
rules adopted by the department, for the administration and enforcement
of the permit system provided in this section. The administration of
the system so established shall be performed exclusively by the local
government.
(4) Except as otherwise specifically provided in subsection
(((11))) (10) of this section, the local government shall require
notification of the public of all applications for permits governed by
any permit system established pursuant to subsection (3) of this
section by ensuring that notice of the application is given by at least
one of the following methods:
(a) Mailing of the notice to the latest recorded real property
owners as shown by the records of the county assessor within at least
three hundred feet of the boundary of the property upon which the
substantial development is proposed;
(b) Posting of the notice in a conspicuous manner on the property
upon which the project is to be constructed; or
(c) Any other manner deemed appropriate by local authorities to
accomplish the objectives of reasonable notice to adjacent landowners
and the public.
The notices shall include a statement that any person desiring to
submit written comments concerning an application, or desiring to
receive notification of the final decision concerning an application as
expeditiously as possible after the issuance of the decision, may
submit the comments or requests for decisions to the local government
within thirty days of the last date the notice is to be published
pursuant to this subsection. The local government shall forward, in a
timely manner following the issuance of a decision, a copy of the
decision to each person who submits a request for the decision.
If a hearing is to be held on an application, notices of such a
hearing shall include a statement that any person may submit oral or
written comments on an application at the hearing.
(5) The system shall include provisions to ((assure)) ensure that
construction pursuant to a permit will not begin or be authorized until
twenty-one days from the date the permit decision was filed as provided
in subsection (6) of this section; or until all review proceedings are
terminated if the proceedings were initiated within twenty-one days
from the date of filing as defined in subsection (6) of this section
except as follows:
(a) In the case of any permit issued to the state of Washington,
department of transportation, for the construction and modification of
SR 90 (I-90) on or adjacent to Lake Washington, the construction may
begin after thirty days from the date of filing, and the permits are
valid until December 31, 1995;
(b) Construction may be commenced no sooner than thirty days after
the date of the appeal of the board's decision is filed if a permit is
granted by the local government and (i) the granting of the permit is
appealed to the shorelines hearings board within twenty-one days of the
date of filing, (ii) the hearings board approves the granting of the
permit by the local government or approves a portion of the substantial
development for which the local government issued the permit, and (iii)
an appeal for judicial review of the hearings board decision is filed
pursuant to chapter 34.05 RCW. The appellant may request, within ten
days of the filing of the appeal with the court, a hearing before the
court to determine whether construction pursuant to the permit approved
by the hearings board or to a revised permit issued pursuant to the
order of the hearings board should not commence. If, at the conclusion
of the hearing, the court finds that construction pursuant to such a
permit would involve a significant, irreversible damaging of the
environment, the court shall prohibit the permittee from commencing the
construction pursuant to the approved or revised permit until all
review proceedings are final. Construction pursuant to a permit
revised at the direction of the hearings board may begin only on that
portion of the substantial development for which the local government
had originally issued the permit, and construction pursuant to such a
revised permit on other portions of the substantial development may not
begin until after all review proceedings are terminated. In such a
hearing before the court, the burden of proving whether the
construction may involve significant irreversible damage to the
environment and demonstrating whether such construction would or would
not be appropriate is on the appellant;
(c) If the permit is for a substantial development meeting the
requirements of subsection (((11))) (10) of this section, construction
pursuant to that permit may not begin or be authorized until twenty-one
days from the date the permit decision was filed as provided in
subsection (6) of this section.
If a permittee begins construction pursuant to (a), (b), or (c) of
this subsection, the construction is begun at the permittee's own risk.
If, as a result of judicial review, the courts order the removal of any
portion of the construction or the restoration of any portion of the
environment involved or require the alteration of any portion of a
substantial development constructed pursuant to a permit, the permittee
is barred from recovering damages or costs involved in adhering to such
requirements from the local government that granted the permit, the
hearings board, or any appellant or intervener.
(6) Any decision on an application for a permit under the authority
of this section, whether it is an approval or a denial, shall,
concurrently with the transmittal of the ruling to the applicant, be
filed with the department and the attorney general. This shall be
accomplished by return receipt requested mail. A petition for review
of such a decision must be commenced within twenty-one days from the
date of filing of the decision.
(a) With regard to a permit ((other than a permit governed by
subsection (10) of this section)), "date of filing" as used in this
section refers to the date of actual receipt by the department of the
local government's decision.
(b) ((With regard to a permit for a variance or a conditional use
governed by subsection (10) of this section, "date of filing" means the
date the decision of the department is transmitted by the department to
the local government.)) When a local government simultaneously transmits to the
department its decision on a shoreline substantial development with its
approval of either a shoreline conditional use permit or variance, or
both, "date of filing" ((
(c)has the same meaning as defined in (b) of this
subsection)) means the date of actual receipt by the department of the
local government's decision.
(((d))) (c) The department shall notify in writing the local
government and the applicant of the date of filing by telephone or
electronic means, followed by written communication as necessary, to
ensure that the applicant has received the full written decision.
(7) Applicants for permits under this section have the burden of
proving that a proposed substantial development is consistent with the
criteria that must be met before a permit is granted. In any review of
the granting or denial of an application for a permit as provided in
RCW 90.58.180 (1) and (2), the person requesting the review has the
burden of proof.
(8) Any permit may, after a hearing with adequate notice to the
permittee and the public, be rescinded by the issuing authority upon
the finding that a permittee has not complied with conditions of a
permit. If the department is of the opinion that noncompliance exists,
the department shall provide written notice to the local government and
the permittee. If the department is of the opinion that the
noncompliance continues to exist thirty days after the date of the
notice, and the local government has taken no action to rescind the
permit, the department may petition the hearings board for a rescission
of the permit upon written notice of the petition to the local
government and the permittee if the request by the department is made
to the hearings board within fifteen days of the termination of the
thirty-day notice to the local government.
(9) The holder of a certification from the governor pursuant to
chapter 80.50 RCW shall not be required to obtain a permit under this
section.
(10) ((Any permit for a variance or a conditional use issued with
approval by a local government under their approved master program must
be submitted to the department for its approval or disapproval.))(a) An application for a substantial development permit for
a limited utility extension or for the construction of a bulkhead or
other measures to protect a single-family residence and its appurtenant
structures from shoreline erosion shall be subject to the following
procedures:
(11)
(i) The public comment period under subsection (4) of this section
shall be twenty days. The notice provided under subsection (4) of this
section shall state the manner in which the public may obtain a copy of
the local government decision on the application no later than two days
following its issuance;
(ii) The local government shall issue its decision to grant or deny
the permit within twenty-one days of the last day of the comment period
specified in (a)(i) of this subsection; and
(iii) If there is an appeal of the decision to grant or deny the
permit to the local government legislative authority, the appeal shall
be finally determined by the legislative authority within thirty days.
(b) For purposes of this section, a limited utility extension means
the extension of a utility service that:
(i) Is categorically exempt under chapter 43.21C RCW for one or
more of the following: Natural gas, electricity, telephone, water, or
sewer;
(ii) Will serve an existing use in compliance with this chapter;
and
(iii) Will not extend more than twenty-five hundred linear feet
within the shorelines of the state.
Sec. 8 RCW 90.58.190 and 2011 c 277 s 5 are each amended to read
as follows:
(1) The appeal of the ((department's)) local government's decision
to adopt a master program or amendment ((pursuant to RCW 90.58.070(2)
or 90.58.090(5))) is governed by RCW 34.05.510 through 34.05.598.
(2)(a) The ((department's final)) decision ((to approve or reject))
by a local government planning under RCW 36.70A.040 to adopt a proposed
master program or master program amendment ((by a local government
planning under RCW 36.70A.040)) shall be appealed to the growth
management hearings board by filing a petition as provided in RCW
36.70A.290.
(b) If the appeal to the growth management hearings board concerns
shorelines, the growth management hearings board shall review the
proposed master program or amendment solely for compliance with the
requirements of this chapter, the policy of RCW 90.58.020 and the
applicable guidelines, the internal consistency provisions of RCW
36.70A.070, 36.70A.040(4), 35.63.125, and 35A.63.105, and chapter
43.21C RCW as it relates to the adoption of master programs and
amendments under chapter 90.58 RCW.
(c) ((If the appeal to the growth management hearings board
concerns a shoreline of statewide significance, the board shall uphold
the decision by the department unless the board, by clear and
convincing evidence, determines that the decision of the department is
inconsistent with the policy of RCW 90.58.020 and the applicable
guidelines.)) The appellant has the burden of proof in all appeals to the
growth management hearings board under this subsection.
(d)
(((e))) (d) Any party aggrieved by a final decision of the growth
management hearings board under this subsection may appeal the decision
to superior court as provided in RCW 36.70A.300.
(3)(a) The ((department's final)) decision ((to approve or reject))
by a local government not planning under RCW 36.70A.040 to adopt a
proposed master program or master program amendment ((by a local
government not planning under RCW 36.70A.040)) shall be appealed to the
shorelines hearings board by filing a petition within thirty days of
the date that the ((department)) local government publishes notice of
its final decision under RCW ((90.58.090(8))) 90.58.120.
(b) In an appeal relating to shorelines, the shorelines hearings
board shall review the proposed master program or master program
amendment and, after full consideration of the presentations of the
local government ((and the department)), shall determine the validity
of the local government's master program or amendment in light of the
policy of RCW 90.58.020 and the applicable guidelines.
(c) ((In an appeal relating to shorelines of statewide
significance, the shorelines hearings board shall uphold the decision
by the department unless the board determines, by clear and convincing
evidence that the decision of the department is inconsistent with the
policy of RCW 90.58.020 and the applicable guidelines.)) Review by the shorelines hearings board shall be considered
an adjudicative proceeding under chapter 34.05 RCW, the administrative
procedure act. The aggrieved local government shall have the burden of
proof in all such reviews.
(d)
(((e))) (d) Whenever possible, the review by the shorelines
hearings board shall be heard within the county where the land subject
to the proposed master program or master program amendment is primarily
located. The ((department and any)) local government aggrieved by a
final decision of the hearings board may appeal the decision to
superior court as provided in chapter 34.05 RCW.
(4) A master program amendment shall become effective after the
((approval of the department or after the)) decision of the shorelines
hearings board to uphold the master program or master program
amendment, provided that the board may remand the master program or
master program adjustment to the local government ((or the department
for modification)) prior to the final adoption of the master program or
master program amendment.
Sec. 9 RCW 90.58.195 and 1989 1st ex.s. c 2 s 13 are each amended
to read as follows:
(1) The department of ecology, in cooperation with other state
agencies and coastal local governments, shall prepare and adopt ocean
use guidelines and policies to be used in reviewing, and where
appropriate, amending, shoreline master programs of local governments
with coastal waters or coastal shorelines within their boundaries.
These guidelines shall be finalized by April 1, 1990.
(2) After the department of ecology has adopted the guidelines
required in subsection (1) of this section, counties, cities, and towns
with coastal waters or coastal shorelines shall review their shoreline
master programs to ensure that the programs conform with RCW 43.143.010
and 43.143.030 and with the department of ecology's ocean use
guidelines. ((Amended master programs shall be submitted to the
department of ecology for its approval under RCW 90.58.090 by June 30,
1991.))
Sec. 10 RCW 90.58.580 and 2009 c 405 s 2 are each amended to read
as follows:
(1) The local government may grant relief from shoreline master
program development standards and use regulations within urban growth
areas when the following apply:
(a) A shoreline restoration project causes or would cause a
landward shift in the ordinary high water mark, resulting in the
following:
(i)(A) Land that had not been regulated under this chapter prior to
construction of the restoration project is brought under shoreline
jurisdiction; or
(B) Additional regulatory requirements apply due to a landward
shift in required shoreline buffers or other regulations of the
applicable shoreline master program; and
(ii) Application of shoreline master program regulations would
preclude or interfere with use of the property permitted by local
development regulations, thus presenting a hardship to the project
proponent; and
(b) The proposed relief meets the following criteria:
(i) The proposed relief is the minimum necessary to relieve the
hardship;
(ii) After granting the proposed relief, there is net environmental
benefit from the restoration project;
(iii) Granting the proposed relief is consistent with the
objectives of the shoreline restoration project and consistent with the
shoreline master program; and
(iv) Where a shoreline restoration project is created as mitigation
to obtain a development permit, the project proponent required to
perform the mitigation is not eligible for relief under this section((;
and)).
(c) The application for relief must be submitted to the department
for written approval or disapproval. This review must occur during the
department's normal review of a shoreline substantial development
permit, conditional use permit, or variance. If no such permit is
required, then the department shall conduct its review when the local
government provides a copy of a complete application and all supporting
information necessary to conduct the review.
(i) Except as otherwise provided in subsection (2) of this section,
the department shall provide at least twenty-days notice to parties
that have indicated interest to the department in reviewing
applications for relief under this section, and post the notice on
their web site.
(ii) The department shall act within thirty calendar days of close
of the public notice period, or within thirty days of receipt of the
proposal from the local government if additional public notice is not
required.
(2) The public notice requirements of subsection (1)(c) of this
section do not apply if the relevant shoreline restoration project was
included in a shoreline master program or shoreline restoration plan as
defined in WAC 173-26-201, as follows:
(a) The restoration plan has been approved by the department under
applicable shoreline master program guidelines;
(b) The shoreline restoration project is specifically identified in
the shoreline master program or restoration plan or is located along a
shoreline reach identified in the shoreline master program or
restoration plan as appropriate for granting relief from shoreline
regulations; and
(c) The shoreline master program or restoration plan includes
policies addressing the nature of the relief and why, when, and how it
would be applied.
(3) A substantial development permit is not required on land within
urban growth areas as defined in RCW 36.70A.030 that is brought under
shoreline jurisdiction due to a shoreline restoration project creating
a landward shift in the ordinary high water mark
(((4))) (2) The definitions in this subsection apply throughout
this section unless the context clearly requires otherwise.
(a) "Shoreline restoration project" means a project designed to
restore impaired ecological function of a shoreline.
(b) "Urban growth areas" has the same meaning as defined in RCW
36.70A.030.
Sec. 11 RCW 90.58.590 and 2009 c 444 s 2 are each amended to read
as follows:
(1) Local governments may adopt moratoria or other interim official
controls as necessary and appropriate to implement this chapter.
(2)(a) A local government adopting a moratorium or control under
this section must:
(i) Hold a public hearing on the moratorium or control;
(ii) Adopt detailed findings of fact that include, but are not
limited to, justifications for the proposed or adopted actions and
explanations of the desired and likely outcomes;
(iii) Notify the department of the moratorium or control
immediately after its adoption. The notification must specify the
time, place, and date of any public hearing required by this
subsection;
(iv) Provide that all lawfully existing uses, structures, or other
development shall continue to be deemed lawful conforming uses and may
continue to be maintained, repaired, and redeveloped, so long as the
use is not expanded, under the terms of the land use and shoreline
rules and regulations in place at the time of the moratorium.
(b) The public hearing required by this section must be held within
sixty days of the adoption of the moratorium or control.
(3) A moratorium or control adopted under this section may be
effective for up to six months if a detailed work plan for remedying
the issues and circumstances necessitating the moratorium or control is
developed and made available for public review. A moratorium or
control may be renewed for two six-month periods if the local
government complies with subsection (2)(a) of this section before each
renewal. ((If a moratorium or control is in effect on the date a
proposed master program or amendment is submitted to the department,
the moratorium or control must remain in effect until the department's
final action under RCW 90.58.090; however, the moratorium expires six
months after the date of submittal if the department has not taken
final action.))
(4) Nothing in this section may be construed to modify county and
city moratoria powers conferred outside this chapter.
Sec. 12 RCW 90.58.620 and 2011 c 323 s 2 are each amended to read
as follows:
(1) New or amended master programs ((approved by the department))
adopted by a local government on or after September 1, 2011, may
include provisions authorizing:
(a) Residential structures and appurtenant structures that were
legally established and are used for a conforming use, but that do not
meet standards for the following to be considered a conforming
structure: Setbacks, buffers, or yards; area; bulk; height; or
density; and
(b) Redevelopment, expansion, change with the class of occupancy,
or replacement of the residential structure if it is consistent with
the master program, including requirements for no net loss of shoreline
ecological functions.
(2) For purposes of this section, "appurtenant structures" means
garages, sheds, and other legally established structures. "Appurtenant
structures" does not include bulkheads and other shoreline
modifications or over-water structures.
(3) Nothing in this section: (a) Restricts the ability of a master
program to limit redevelopment, expansion, or replacement of over-water
structures located in hazardous areas, such as floodplains and
geologically hazardous areas; or (b) affects the application of other
federal, state, or local government requirements to residential
structures.