PERMANENT RULES
NATURAL RESOURCES
Effective Date of Rule: Thirty-one days after filing.
Purpose: SHB 1491 reorganized and renumbered all aquatic lands statutes, throughout Title 79 RCW. This rule change will update all RCW references within the aquatic lands administrative codes (chapter 332-30 WAC) to reflect this reorganization and renumbering. It will also correct a few internal numbering references. It will make no substantive changes.
Citation of Existing Rules Affected by this Order: Amending chapter 332-30 WAC.
Statutory Authority for Adoption: RCW 79.105.360.
Adopted under notice filed as WSR 05-23-177 on November 23, 2005.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 15, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: February 6, 2006.
Doug Sutherland
Commissioner of
Public Lands
OTS-8488.1
AMENDATORY SECTION(Amending Resolution No. 500, filed
11/5/85)
WAC 332-30-100
Introduction.
Subsection (2)(e) of this
section shall not apply to port districts managing aquatic
lands under a management agreement (WAC 332-30-114). State-owned aquatic lands include approximately 1,300 miles of
tidelands, 6,700 acres of constitutionally established harbor
areas and all of the submerged land below extreme low tide
which amounts to some 2,000 square miles of marine beds of
navigable waters and an undetermined amount of fresh water
shoreland and bed. These lands are managed as a public trust
and provide a rich land base for a variety of recreational,
economic and natural process activities. Management concepts,
philosophies, and programs for state-owned aquatic lands
should be consistent with this responsibility to the public.
These lands are "a finite natural resource of great value
and an irreplaceable public heritage" and will be managed to
"provide a balance of public benefits for all citizens of the
state." (RCW ((79.90.450 and 79.90.455)) 79.105.010,
79.105.020, and 79.105.030)
(1) Management goals. Management of state-owned aquatic lands will strive to:
(a) Foster water-dependent uses;
(b) Ensure environmental protection;
(c) Encourage direct public use and access;
(d) Promote production on a continuing basis of renewable resources;
(e) Allow suitable state aquatic lands to be used for mineral and material production; and
(f) Generate income from use of aquatic lands in a manner consistent with the above goals.
(2) Management methods. To achieve the above, state-owned aquatic lands will be managed particularly to promote uses and protect resources of statewide value.
(a) Planning will be used to prevent conflicts and mitigate adverse effects of proposed activities involving resources and aquatic land uses of statewide value. Mitigation shall be provided for as set forth in WAC 332-30-107(6).
(b) Areas having unique suitability for uses of statewide value or containing resources of statewide value may be managed for these special purposes. Harbor areas and scientific reserves are examples. Unique use requirements or priorities for these areas may supersede the need for mitigation.
(c) Special management programs may be developed for those resources and activities having statewide value. Based on the needs of each case, programs may prescribe special management procedures or standards such as lease auctions, resource inventory, shorter lease terms, use preferences, operating requirements, bonding, or environmental protection standards.
(d) Water-dependent uses shall be given a preferential
lease rate in accordance with RCW ((79.90.480)) 79.105.240. Fees for nonwater-dependent aquatic land uses will be based on
fair market value.
(e) Research and development may be conducted to enhance production of renewable resources.
[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-100, filed 11/5/85. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-100, filed 7/3/80.]
(1) "Accretion" means the natural buildup of shoreline through the gradual deposit of alluvium. The general principle of common law applicable is that a riparian or littoral owner gains by accretion and reliction, and loses by erosion. Boundary lines generally will change with accretion.
(2) "Alluvium" means material deposited by water on the bed or shores.
(3) "Anniversary date" means the month and day of the start date of an authorization instrument unless otherwise specified in the instrument.
(4) "Aquaculture" means the culture and/or farming of food fish, shellfish, and other aquatic plants and animals in fresh water, brackish water or salt water areas. Aquaculture practices may include but are not limited to hatching, seeding or planting, cultivating, feeding, raising, harvesting of planted crops or of natural crops so as to maintain an optimum yield, and processing of aquatic plants or animals.
(5) "Aquatic lands" means all state-owned tidelands,
shorelands, harbor areas, and the beds of navigable waters
(RCW ((79.90.010)) 79.105.060(1)). Aquatic lands are part of
the public lands of the state of Washington (see subsection
(((49))) (51) of this section). Included in aquatic lands are
public places subsection (((51))) (53) of this section,
waterways subsection (((74))) (78) of this section, bar
islands, avulsively abandoned beds and channels of navigable
bodies of water, managed by the department of natural
resources directly, or indirectly through management
agreements with other governmental entities.
(6) "Aquatic land use classes" means classes of uses of tideland, shorelands and beds of navigable waters that display varying degrees of water dependency. See WAC 332-30-121.
(7) "Authorization instrument" means a lease, material purchase, easement, permit, or other document authorizing use of state-owned aquatic lands and/or materials.
(8) "Avulsion" means a sudden and perceptible change in the shoreline of a body of water. Generally no change in boundary lines occurs.
(9) "Beds of navigable waters" means those submerged lands lying waterward of the line of extreme low tide in navigable tidal waters and waterward of the line of navigability in navigable lakes, rivers and streams. The term, "bedlands" means beds of navigable waters.
(10) "Commerce" means the exchange or buying and selling of goods and services. As it applies to aquatic land, commerce usually involves transport and a land/water interface.
(11) "Covered moorage" means slips and mooring floats that are covered by a single roof with no dividing walls.
(12) "Department" means the department of natural resources.
(13) "Dredging" means enlarging or cleaning out a river channel, harbor, etc.
(14) "Educational reserves" means accessible areas of aquatic lands typical of selected habitat types which are suitable for educational projects.
(15) "Enclosed moorage" means moorage that has completely enclosed roof, side and end walls similar to a car garage i.e. boathouse.
(16) "Environmental reserves" means areas of environmental importance, sites established for the continuance of environmental baseline monitoring, and/or areas of historical, geological or biological interest requiring special protective management.
(17) "Erosion" means the gradual cutting away of a shore by natural processes. Title is generally lost by erosion, just as it is gained by accretion.
(18) "Extreme low tide" means the line as estimated by the federal government below which it might reasonably be expected that the tide would not ebb. In Puget Sound area generally, this point is estimated by the federal government to be a point in elevation 4.50 feet below the datum plane of mean lower low water, (0.0). Along the Pacific Ocean and in the bays fronting thereon and the Strait of Juan due Fuca, the elevation ranges down to a minus 3.5 feet in several locations.
(19) "Fair market value" means the amount of money which a purchaser willing, but not obligated, to buy the property would pay an owner willing, but not obligated, to sell it, taking into consideration all uses to which the property is adapted and might in reason be applied (Donaldson v. Greenwood, 40 Wn.2d 238, 1952). Such uses must be consistent with applicable federal, state and local laws and regulations affecting the property as of the date of valuation.
(20) "First class shorelands" means the shores of a
navigable lake or river belonging to the state not subject to
tidal flow, lying between the line of ordinary high water and
the line of navigability, or the inner harbor line where
established and within or in front of the corporate limits of
any city, or within two miles thereof upon either side (RCW
((79.90.040)) 79.105.060(3)). These boundary descriptions
represent the general rule; however exceptions do exist. To
determine if the shorelands are within two miles of the
corporate limits of a city, the distance is measured along the
shoreline from the intersection of the corporate limit with
the shoreline.
(21) "First class tidelands" means the shores of
navigable tidal waters belonging to the state lying within or
in front of the corporate limits of any city, or within one
mile thereof upon either side and between the line of ordinary
high tide and the inner harbor line; and within two miles of
the corporate limits on either side and between the line of
ordinary high tide and the line of extreme low tide (RCW
((79.90.030)) 79.105.060(4)). In general, the line of
ordinary high tide is the landward boundary. The line of
extreme low tide, or the inner harbor line where established,
is the waterward boundary. To determine if the tidelands are
within two miles of the corporate limits of a city, the
distance is measured along the shoreline from the intersection
of the corporate limit with the shoreline.
(22) "Fiscal year" means a period of time commencing on the first day of July and ending on the thirtieth day of June of the succeeding year. A fiscal year is identified by the year in which it ends, e.g., fiscal year 1985 is the period July 1, 1984 through June 30, 1985.
(23) "Floating house" means any floating structure that is designed, or has been substantially and structurally remodeled or redesigned, to serve primarily as a residence. "Floating houses" include house boats, house barges, or any floating structures that serve primarily as a residence and do not qualify as a vessel as provided in subsection (74) of this section. A floating structure that is used as a residence and is capable of navigation, but is not designed primarily for navigation, nor normally is capable of self propulsion and use as a means of transportation is a floating house, not a vessel.
(24) "Governmental entity" means the federal government, the state, county, city, port district, or other municipal corporation or political subdivision thereof.
(25) "Harbor area" means the area of navigable waters
determined as provided in section 1 of Article XV of the state
Constitution which shall be forever reserved for landings,
wharves, streets, and other conveniences of navigation and
commerce (RCW ((79.90.020)) 79.105.060(5)). Harbor areas
exist between the inner and outer harbor lines as established
by the state harbor line commission.
(26) "Harbor area use classes" means classes of uses of harbor areas that display varying degrees of conformance to the purpose for which harbor areas were established under the Constitution.
(27) "Harbor line" means either or both:
(a) A line (outer harbor line) located and established in navigable waters as provided for in section 1 of Article XV of the state Constitution beyond which the state shall never sell or lease any rights whatever to private persons (RCW 79.105.060(12)).
(b) A line (inner harbor line) located and established in
navigable waters between the line of ordinary high tide and
the outer harbor line, constituting the inner boundary of the
harbor area (RCW ((79.90.025)) 79.105.060(8)).
(28) "Inflation rate" means, for a given year, the
percentage rate of change in the previous calendar year's all
commodity producer price index of the Bureau of Labor
Statistics of the United States department of commerce (RCW
((79.90.465)) 79.105.060(7)). The rate published by the
bureau during May of each year for the previous calendar year
shall be the rate for the previous calendar year.
(29) "Interest rate" shall be twelve percent per annum
(RCW ((79.90.520)) 43.17.240).
(30) "Interim uses" means certain uses which may, under special circumstances, be allowed to locate in harbor areas (see WAC 332-30-115(5)).
(31) "Inventory" means both a compilation of existing data on man's uses, and the biology and geology of aquatic lands as well as the gathering of new information on aquatic lands through field and laboratory analysis. Such data is usually presented in map form such as the Washington Marine Atlas.
(32) "Island" means a body of land entirely and customarily surrounded by water. Land in navigable waters which is only surrounded by water in times of high water, is not an island within the rule that the state takes title to newly formed islands in navigable waters.
(33) "Line of navigability" means a measured line at that depth sufficient for ordinary navigation as determined by the board of natural resources for the body of water in question.
(34) "Log booming" means placing logs into and taking
them out of the water, assembling and disassembling log rafts
before or after their movement in water-borne commerce,
related handling and sorting activities taking place in the
water, and the temporary holding of logs to be taken directly
into a processing facility (RCW ((79.90.465)) 79.105.060(9)).
(35) "Log storage" means the water storage of logs in
rafts or otherwise prepared for shipment in water-borne
commerce, but does not include the temporary holding of logs
to be taken directly into a vessel or processing facility (RCW
((79.90.465)) 79.105.060(10)).
(36) "Marine land" means those lands from the mean high tide mark waterward in marine and estuarine waters, including intertidal and submerged lands. Marine lands represents a portion of aquatic lands.
(37) "Meander line" means fixed determinable lines run by the federal government along the banks of all navigable bodies of water and other important rivers and lakes for the purpose of defining the sinuosities of the shore or bank and as a means of ascertaining the areas of fractional subdivisions of the public lands bordering thereon.
(38) "Moorage facility" means a marina, open water moorage and anchorage area, pier, dock, mooring buoy, or any other similar fixed moorage site.
(39) "Motorized vehicular travel" means movement by any type of motorized equipment over land surfaces.
(40) "Multiple use management" means a management philosophy which seeks to insure that several uses or activities can occur at the same place at the same time. The mechanism involves identification of the primary use of the land with provisions such as performance standards to permit compatible secondary uses to occur.
(41) "Navigability or navigable" means that a body of water is capable or susceptible of having been or being used for the transport of useful commerce. The state of Washington considers all bodies of water meandered by government surveyors as navigable unless otherwise declared by a court.
(42) "Navigation" means the movement of vessels to and from piers and wharves.
(43) "Nonwater-dependent use" means a use that can
operate in a location other than on the waterfront. Examples
include, but are not limited to, hotels, condominiums,
apartments, restaurants, retail stores, and warehouses not
part of a marine terminal or transfer facility (RCW
((79.90.465)) 79.105.060(11)).
(44) "Open moorage" means moorage slips and mooring floats that have completely open sides and tops.
(45) "Open water moorage and anchorage areas" are areas of state-owned aquatic lands leased for moorage and anchorage that do not abut uplands and do not include a built connection to the uplands. They are generally in the center of a waterbody, to provide moorage in addition to any marinas and docks along the edge of the waterbody. They may contain mooring buoys, floating moorage docks, other moorage facilities not connected to the shoreline, and/or anchorage areas, as determined by the lessee and approved by the department. These areas are leased in accordance with WAC 332-30-139(5) and subject to the restrictions therein.
(46) "Optimum yield" means the yield which provides the greatest benefit to the state with particular reference to food production and is prescribed on the basis of the maximum sustainable yield over the statewide resource base as modified by any relevant economic, social or ecological factor.
(47) "Ordinary high tide" means the same as mean high tide or the average height of high tide. In Puget Sound, the mean high tide line varies from 10 to 13 feet above the datum plane of mean lower low water (0.0).
(48) "Ordinary high water" means, for the purpose of asserting state ownership, the line of permanent upland vegetation along the shores of nontidal navigable waters. In the absence of vegetation, it is the line of mean high water.
(49) "Port district" means a port district created under
Title 53 RCW (RCW ((79.90.465)) 79.105.060(14)).
(50) "Public benefit" means that all of the citizens of
the state may derive a direct benefit from departmental
actions in the form of environmental protection; energy and
mineral production; utilization of renewable resources;
promotion of navigation and commerce by fostering
water-dependent uses; and encouraging direct public use and
access; and generating revenue in a manner consistent with RCW
((79.90.455)) 79.105.030.
(51) "Public lands" means lands belonging to or held in
trust by the state, which are not devoted to or reserved for a
particular use by law, and include state lands, tidelands,
shorelands and harbor areas as herein defined, and the beds of
navigable waters belonging to the state (RCW ((79.01.004))
79.02.010).
(52) "Public interest" means. . . . (reserved).
(53) "Public place" means a part of aquatic lands set aside for public access through platted tidelands, shorelands, and/or harbor areas to the beds of navigable waters.
(54) "Public tidelands" means tidelands belonging to and held in public trust by the state for the citizens of the state, which are not devoted to or reserved for a particular use by law.
(55) "Public trust" means that certain state-owned tidelands, shorelands and all beds of navigable waters are held in trust by the state for all citizens with each citizen having an equal and undivided interest in the land. The department has the responsibility to manage these lands in the best interest of the general public.
(56) "Public use" means to be made available daily to the general public on a first-come, first-served basis, and may not be leased to private parties on any more than a day use basis.
(57) "Public use beach" means a state-owned beach available for free public use but which may be leased for other compatible uses.
(58) "Public utility line" means pipes, conduits, and
similar facilities for distribution of water, electricity,
natural gas, telephone, other electronic communication, and
sewers, including sewer outfall lines (RCW ((79.90.465))
79.105.060(15)).
(59) "Real rate of return" means the average for the most
recent ten calendar years of the average rate of return on
conventional real property mortgages as reported by the
Federal Home Loan Bank Board or any successor agency, minus
the average inflation rate for the most recent ten calendar
years (RCW ((79.90.465)) 79.105.060(16)).
(60) "Reliction" means the gradual withdrawal of water from a shoreline leaving the land uncovered. Boundaries usually change with reliction.
(61) "Renewable resource" means a natural resource which through natural ecological processes is capable of renewing itself.
(62) "Residential use" means any noncommercial habitation of:
(a) A floating house, as defined in WAC 332-30-106(23); or
(b) A vessel, as defined in WAC 332-30-106(74), when any one of the following applies:
(i) Any person or succession of different persons resides on the vessel in a specific location, and/or in the same area on more than a total of thirty days in any forty-day period or on more than a total of ninety days in any three hundred sixty-five-day period. "In the same area" means within a radius of one mile of any location where the same vessel previously moored or anchored on state-owned aquatic lands. A vessel that is occupied and is moored or anchored in the same area, but not for the number of days described in this subsection, is considered used as a recreational or transient vessel;
(ii) The city or county jurisdiction, through local ordinance or policy, defines the use as a residential use or identifies the occupant of the vessel as a resident of the vessel or of the facility where it is moored;
(iii) The operator of the facility where the vessel is moored, through the moorage agreement, billing statement, or facility rules, defines the use as a residential use or identifies the occupant of the vessel as a resident of the vessel or of the facility; or
(iv) The occupant or occupants identify the vessel or the facility where it is moored as their residence for voting, mail, tax, or similar purposes.
(63) "Riparian" means relating to or living or located on the bank of a natural water course, such as a stream, lake or tidewater.
(64) "Scientific reserves" means sites set aside for scientific research projects and/or areas of unusually rich plant and animal communities suitable for continuing scientific observation.
(65) "Second class shorelands" means the shores of a
navigable lake or river belonging to the state, not subject to
tidal flow, lying between the line of ordinary high water and
the line of navigability, and more than two miles from the
corporate limits of any city (RCW ((79.90.045))
79.105.060(17)). These boundary definitions represent the
general rule; however, exceptions do exist. To determine if
shorelands are more than two miles from the corporate limits
of a city, the distance is measured along the shoreline from
the intersection of the corporate limit with the shoreline.
(66) "Second class tidelands" means the shores of
navigable tidal waters belonging to the state, lying outside
of and more than two miles from the corporate limits of any
city and between the line of ordinary high tide and the line
of extreme low tide (RCW ((79.90.035)) 79.105.060(18)). In
general, the line of ordinary high tide is the landward
boundary. The line of extreme low tide is the waterward
boundary. To determine if the tidelands are more than two
miles from the corporate limits of a city, the distance is
measured along the shoreline from the intersection of the
corporate limit with the shoreline.
(67) "Shore" means that space of land which is alternately covered and left dry by the rising and falling of the water level of a lake, river or tidal area.
(68) "State-owned aquatic lands" means those aquatic
lands and waterways administered by the department of natural
resources or managed under department agreement by a port
district. "State-owned aquatic lands" does not include
aquatic lands owned in fee by, or withdrawn for the use of,
state agencies other than the department of natural resources
(RCW ((79.90.465)) 79.105.060(20)).
(69) "Statewide value." The term statewide value applies to aquatic land uses and natural resources whose use, management, or intrinsic nature have statewide implications. Such uses and resources may be either localized or distributed statewide. Aquatic land uses of statewide value provide major statewide public benefits. Public use and access, renewable resource use and water-dependent use have been cited by the legislature as examples of such uses. Aquatic land natural resources of statewide value are those critical or uniquely suited to aquatic land uses of statewide value or to environmental quality. For example, wild and scenic rivers, high quality public use beaches and aquatic lands fronting state parks are of statewide value for public use and access. Commercial clam and geoduck beds and sites uniquely suited to aquaculture are of statewide value to renewable resource use. Harbor areas are of statewide value to water-dependent navigation and commerce. Certain aquatic land habitats and plant and animal populations are of statewide value to recreational and commercial fisheries, wildlife protection, and scientific study.
(70) "Streamway" means stream dependent corridor of single or multiple, wet or dry channel, or channels within which the usual seasonal or storm water run-off peaks are contained, and within which environment the flora, fauna, soil and topography is dependent on or influenced by the height and velocity of the fluctuating river currents.
(71) "Terminal" means a point of interchange between land
and water carriers, such as a pier, wharf, or group of such,
equipped with facilities for care and handling of cargo and/or
passengers (RCW ((79.90.465)) 79.105.060(21)).
(72) "Thread of stream - thalweg" means the center of the main channel of the stream at the natural and ordinary stage of water.
(73) "Town" means a municipal corporation of the fourth class having not less than three hundred inhabitants and not more than fifteen hundred inhabitants at the time of its organization (RCW 35.01.040).
(74) "Vessel" means a floating structure that is designed primarily for navigation, is normally capable of self propulsion and use as a means of transportation, and meets all applicable laws and regulations pertaining to navigation and safety equipment on vessels, including, but not limited to, registration as a vessel by an appropriate government agency.
(75) "Water-dependent use" means use which cannot
logically exist in any location but on the water. Examples
include, but are not limited to, waterborne commerce; terminal
and transfer facilities; ferry terminals; watercraft sales in
conjunction with other water dependent uses; watercraft
construction, repair, and maintenance; moorage and launching
facilities; aquaculture; log booming; and public fishing piers
and parks (RCW ((79.90.465(1))) 79.105.060(24)).
(76) "Waterfront" means a parcel of property with upland characteristics which includes within its boundary, a physical interface with the existing shoreline of a body of water.
(77) "Water oriented use" means use which historically
has been dependent on a waterfront location, but with existing
technology could be located away from the waterfront. Examples include, but are not limited to, wood products
manufacturing, watercraft sales, fish processing, petroleum
refining, sand and gravel processing, log storage, and
houseboats (RCW ((79.90.465)) 79.105.060(25)).
(78) "Waterway" means an area platted across aquatic lands or created by a waterway district providing for access between the uplands and open water, or between navigable bodies of water.
(79) "Wetted perimeter" means a fluctuating water line which separates submerged river beds from the dry shoreland areas at any given time.
[Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-106, filed 10/17/02, effective 11/17/02. Statutory Authority: RCW 79.01.132, 79.01.216, 79.90.520, 79.90.535 and 1991 c 64 §§ 1 and 2. 91-22-079 (Order 580), § 332-30-106, filed 11/5/91, effective 12/6/91. Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-106, filed 11/5/85. Statutory Authority: 1984 c 221 and RCW 79.90.540. 84-23-014 (Resolution No. 470), § 332-30-106, filed 11/9/84. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-106, filed 7/3/80.]
(2) New harbor areas will only be established to serve the following purposes:
(a) Reserving adequate urban space for navigation and commerce facilities; and
(b) Preventing urban development from disrupting navigation.
(3) New harbor areas will only be established when a need is demonstrated by existing development or by plans, studies, project proposals or other evidence of development potential in, or waterward of, the proposed harbor area.
(4) Unless there is an overriding statewide navigation and commerce need, new harbor areas will only be established when:
(a) Compatible with local land use and shoreline management plans;
(b) Supported by the city, county and port district;
(c) The area is physically and environmentally suitable for navigation and commerce purposes; and
(d) Necessary support facilities and services are likely to be available.
(5) The shoreline length of a new harbor area established along a city's waterfront will be determined by the need and purposes to be served and by conformance with subsection (4) of this section.
(6) Harbor line placement standards.
(a) Harbor lines will be placed to serve constitutional harbor area purposes as they relate to the individual site in question.
(b) Harbor lines will be placed to provide practical development guidance. Harbor lines will relate to navigation and commerce development which has occurred or can reasonably be expected to occur.
(c) Inner harbor lines will be placed at the boundary of public aquatic land ownership. Inner harbor lines may be placed waterward of the boundary of public ownership to avoid conflicts with other guidelines in this section.
(d) Outer harbor lines will generally be placed near the ends of existing conforming structures located on public aquatic lands. The lines shall provide adequate space for navigation and commerce and prevent development from interfering with navigation.
(e) Unless there is an overriding statewide navigation and commerce need, harbor lines will be placed in accordance with:
(i) Local, state and federal land use plans and environmental regulations;
(ii) Maintenance of environmental quality;
(iii) Existing abutting harbor lines; and
(iv) Existing aquatic land development.
[Statutory Authority: RCW 79.90.080, 79.92.010, 79.94.240 and 79.94.250. 84-23-008 (Resolution No. 469), § 332-30-108, filed 11/9/84.]
(1) Interpretations. Phrases used in legislation (RCW
((79.90.475)) 79.105.420) providing for management agreements
with ports shall have the following interpretation:
(a) "Administrative procedures" means conducting business by the port district and its port commission.
(b) "Aquatic lands abutting or used in conjunction with and contiguous to" means state-owned aquatic lands which share a common or coincident boundary with an upland parcel or in the event the state aquatic land does not attach to an upland parcel (i.e., bedlands, harbor areas, etc.), this term shall include the aquatic land adjacent to and waterward of the port owned or controlled aquatic parcel which has a common or coincident boundary to the upland parcel.
(c) "Diligently pursued" means such steady and earnest effort by the port district and the department which results in the resolution of any deficiencies preventing the issuance of a management agreement to the port.
(d) "Leasehold interest" means the benefits and obligations of both the lessor and lessee resulting from a lease agreement.
(e) "Model management agreement" means a document approved by the board of natural resources to be used for all individual management agreements with port districts.
(f) "Operating management" means the planning, organizing, staffing, coordinating, and controlling for all activities occurring on a property.
(g) "Otherwise managed" means having operating management for a property.
(h) "Revenue attributable" means all rentals, fees, royalties, and/or other payments generated from the use of a parcel; or the most likely amount of money due for the use of a parcel as determined by procedures in chapter 332-30 WAC, whichever is greater.
(2) Criteria for inclusion. State-owned parcels of
aquatic lands, including those under lease or which may come
under lease to a port, abutting port district uplands may be
included in a management agreement if criteria set forth in
RCW ((79.90.475)) 79.105.420 are met and if there is
documentation of ownership, a lease in good standing, or
agreement for operating management, in the name of the port
district for the upland parcel.
(3) A model management agreement and any amendments thereto shall be developed by the department and representatives of the port industry. The board of natural resources shall review and approve the model management agreement and any subsequent amendments.
(4) Processing requests. The following application requirements, review procedures, and time frame for responses involved in the issuance of a management agreement to a port district shall apply.
(a) Application requirements. The following items must be submitted to the department by the port district in order for its request to be an application for a management agreement:
(i) A copy of a resolution of the port commission that directs the port district to seek a management agreement;
(ii) An exhibit showing the location of and a description adequate to allow survey for each parcel of state-owned aquatic land to be included in the agreement, plus sufficient information on abutting port parcels to satisfy the requirements of subsection (2) of this section;
(iii) The name, address, and phone number of the person or persons that should be contacted if the department has any questions about the application.
(b) Time frames for responses:
(i) Within thirty days of receipt of an application, the department shall notify the port district if its application is complete or incomplete;
(ii) Within thirty days of receipt of notification by the department of any incompleteness in their application, the port district shall submit the necessary information;
(iii) Within ninety days of receipt of notification by the department that the application is complete, the port district and department shall take all steps necessary to enter into an agreement.
[Statutory Authority: 1984 c 221 and RCW 79.90.540. 84-23-014 (Resolution No. 470), § 332-30-114, filed 11/9/84.]
(2) Priority use. Providing public navigation routes between water and land for conveniences of navigation and commerce is the priority waterway use.
(3) Permit requirement. In order to assure availability of waterways for present and future conveniences of navigation and commerce, moorage (other than transient moorage for fewer than 30 days), and other waterway uses shall require prior authorization from the department. Permits may be issued for terms not exceeding one year if there will be no significant interference with the priority waterway use or short-term moorage. Permits may be issued for terms not exceeding five years for uses listed in subsection (4) of this section in instances in which existing development, land use, ownership, or other factors are such that the current and projected demand for priority waterway uses is reduced or absent.
(4) Permit priority. In cases of competing demands for waterways, the following order of priority will apply:
(a) Facilities which provide public access to adjacent properties for loading and unloading of watercraft;
(b) Water-dependent commerce, as defined in WAC 332-30-115(1), related to use of the adjacent properties;
(c) Other water-dependent uses;
(d) Facilities for nonnavigational public access;
(e) Other activities consistent with the requirements in WAC 332-30-131(4) for public use facilities.
(5) Waterway permits. All necessary federal, state, and local permits shall be acquired by those proposing to use waterways. Copies of permits must be furnished to the department prior to authorizing the use of waterways.
(6) Obstructions. Permanent obstruction of waterways, including filling is prohibited. Structures associated with authorized uses in waterways shall be capable of ready removal. Where feasible, anchors and floats shall be preferred over pilings.
(7) Permit process. Applications for waterway permits will be processed as follows:
(a) Local government review of permit applications will be requested.
(b) Public comment will be gathered through the shoreline permit process, if applicable. If no shoreline permit is required, public comment will be gathered through the methods described in WAC 332-41-510(3).
(c) Applications will be reviewed for consistency with the policy contained in this chapter.
(d) Evaluation will consider existing, planned, and foreseeable needs and demands for higher priority uses in the waterway and in the associated water body.
(8) The department will require waterway permittees to provide security in accordance with WAC 332-30-122(5) to insure the provisions of waterway permits are fulfilled.
(9) Cancellation. Permission to use waterways is subject to cancellation in order to satisfy the needs of higher priority waterway uses. Transient moorage may be required to move at any time. Waterway permits are cancellable upon ninety days' notice when the sites are needed for higher priority uses.
(10) Monitoring. Local governments will be encouraged to monitor waterway use and to report any uses not in compliance with this regulation.
(11) Planning. Planning for waterway use will be encouraged. The shoreline planning process should provide for the long range needs of preferred waterway uses and other statewide values. Planning should also consider the availability of other public property, such as platted street ends, to serve anticipated needs.
(12) Existing uses. Existing waterway uses, structures,
and obstructions will be reviewed for compliance with this
section. Uses not in compliance shall be removed within one
year from the date notification of noncompliance is mailed
unless the public interest requires earlier removal. Unless
early removal is required, removal may be postponed if the
department receives a request for vacation of the waterway
from the city or port district in accordance with RCW
((79.93.060)) 79.120.060. If the request for waterway
vacation is denied, the structure must be removed within six
months of mailing of notice of denial or within one year of
the original date of notification of noncompliance, whichever
is later.
(13) Fees. Waterway permit fees will be determined on the same basis as required for similar types of uses on other state-owned aquatic lands.
(14) Filled areas. Certain waterways contain unauthorized fill material. The filled areas have generally assumed the characteristics of the abutting upland. Nonwater-dependent uses may be allowed on existing fills when there will be no interference with priority or other permitted waterway uses and when permitted under applicable local, state, and federal regulations.
[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-117, filed 11/5/85.]
(a) The shorelands are natural, conservancy, or equivalent designated areas under the local shoreline master program.
(b) The shorelands are located in front of land with public upland ownership or public access easements.
(c) Further sales of shorelands would preclude the establishment of public access to the lake, or adversely affect the public use and access to the lake.
(2) Prior to the sale of second class shorelands on a navigable lake, the department will:
(a) Depict on a suitable map the current ownership of all shorelands and identify those shorelands potentially available for sale as provided under WAC 332-30-119(1).
(b) Identify any privately owned shorelands, acquisition of which would benefit the public.
(c) Identify and establish the waterward boundary of the shorelands potentially available for sale or acquisition.
(d) Make an appraisal of the value of the shorelands potentially available for sale or acquisition in accordance with as many of the following techniques as are appropriate to the parcels in question:
(i) The market value of shorelands as of the last equivalent sale before the moratorium multiplied by the percentage increase in value of the abutting upland during the same period, i.e.,
FMV = (V2/V1) x (S1)
FMV = Current fair market value of shorelands
S1 = Value of shorelands at time of last equivalent sale
V1 = Value of abutting upland at time of last equivalent shoreland sale
V2 = Current fair market value of upland to a maximum of 150 feet shoreward
(ii) Techniques identified in adopted aquatic land management WACs e.g. WAC 332-30-125
(iii) The sales price of the shoreland shall be the fair market value as determined in (2)(d)(i)(ii) but not less than five percent of the fair market value of the abutting uplands, less improvements, to a maximum depth of one hundred fifty feet landward from the line of ordinary high water.
(e) If necessary, prepare a lake management plan in cooperation with local government to guide future department activities on the publicly owned aquatic lands.
(3) The board of natural resources shall determine whether or not the sale would be in the public interest, and a sales price shall be established by the department of natural resources in a reasonable period of time.
[Statutory Authority: RCW 43.30.150 and 79.01.474. 80-08-071 (Order 342), § 332-30-119, filed 7/1/80.]
(1) General requirements.
(a) In addition to other requirements of law, aquatic land activities that interfere with the use by the general public of an area will require authorization from the department by way of agreement, lease, permit, or other instrument.
(i) Suitable instruments shall be required for all structures on aquatic lands except for those federal structures serving the needs of navigation.
(ii) The beds of navigable waters may be leased to the owner or lessee of the abutting tideland or shoreland. This preference lease right is limited to the area between the landward boundary of the beds and the -3 fathom contour, or 200 feet waterward, whichever is closer to shore. However, the distance from shore may be less in locations where it is necessary to protect the navigational rights of the public.
(iii) When proposing to lease aquatic lands to someone other than the abutting property owner, that owner shall be notified of the intention to lease the area. When not adverse to the public's ownership, the abutting owner's water access needs may be reasonably accommodated.
(b) Determination of the area encumbered by an authorization for use shall be made by the department based on the impact to public use and subsequent management of any remaining unencumbered public land.
(i) Operations involving fixed structures will include the area physically encumbered plus the open water area needed to operate the facility.
(ii) Areas for individual mooring buoys will be a circle with a radius equal to the expected swing of the vessel or object moored. Only the area encumbered at any given point in time shall be used to calculate any rentals due.
(iii) Areas for utility line easements will normally be ten feet wider than the overall width of the structure(s) placed in the right of way.
(c) All necessary federal, state and local permits shall be acquired by those proposing to use aquatic lands. Copies of permits must be furnished to the department prior to authorizing the use of aquatic lands. When evidence of interest in aquatic land is necessary for application for a permit, an authorization instrument may be issued prior to permit approval but conditioned on receiving the permit.
(2) Application review. In addition to other management considerations, the following special analysis shall be given to specific proposed uses:
(a) Environment.
(i) Authorization instruments shall be written to insure that structures and activities on aquatic lands are properly designed, constructed, maintained and conducted in accordance with sound environmental practices.
(ii) Uses which cause adverse environmental impacts may be authorized on aquatic lands only upon compliance with applicable environmental laws and regulations and appropriate steps as may be directed are taken to mitigate substantial or irreversible damage to the environment.
(iii) Nonwater-dependent uses which have significant adverse environmental impacts shall not be authorized.
(b) Public use and access.
(i) Wherever practical, authorization instruments for use of aquatic lands shall be written to provide for public access to the water.
(ii) Areas allocated for first-come, first-served public use shall not be managed to produce a profit for a concessionaire or other operator without a fee being charged.
(iii) Notice will be served to lessees of tidelands and shorelands allocated for future public use that prior to renewal of current leases, such leases will be modified to permit public use or will be terminated.
(c) Authorization to use aquatic lands shall not be granted to any person or organization which discriminates on the basis of race, color, creed, religion, sex, age, or physical or mental handicap.
(d) Authorization instruments for the installation of underwater pipelines, outfalls and cables may be granted when proper provisions are included to insure against substantial or irreversible damage to the environment and there is no practical upland alternative.
(3) Rents and fees.
(a) When proposed uses of aquatic lands requiring an authorization instrument (other than in harbor areas) have an identifiable and quantifiable but acceptable adverse impact on state-owned aquatic land, both within and without the authorized area, the value of that loss or impact shall be paid by the one so authorized in addition to normal rental to the department or port as is appropriate.
(b) Normal rentals shall be calculated based on the classification of the aquatic land use(s) occurring on the property. Methods for each class of use are described in specific WAC sections.
(c) Advance payments for two or more years may be collected in those situations where annual payments are less than document preparation and administration costs.
(d) Rentals for leases will normally be billed annually, in advance. If requested by a lessee in good standing, billings will be made:
(i) Quarterly on a prorated basis when annual rental exceeds four thousand dollars; or
(ii) Monthly on a prorated basis when annual rental exceeds twelve thousand dollars.
(e) A one percent per month charge shall be made on any amounts which are past due, unless those amounts are appealed. Users of aquatic properties shall not be considered in good standing when they have amounts more than thirty days past due.
(4) Structures and improvements on aquatic lands.
(a) Authorization for placing structures and improvements on public aquatic lands shall be based on the intended use, other uses in the immediate area, and the effect on navigational rights of public and private aquatic land owners. Structures and improvements shall:
(i) Conform to the laws and regulations of any public authority;
(ii) Be kept in good condition and repair by the authorized user of the aquatic lands;
(iii) Not be, nor become, a hazard to navigation;
(iv) Be removed by the authorized user as stipulated in the authorization instrument.
(b) In addition to aquatic land rentals and fees, rent shall be charged for use of those structures and improvements:
(i) Owned by the department, under contract to the
department for management; or that become state property under
RCW ((79.94.320)) 79.125.300;
(ii) As may be agreed upon as part of the authorization document;
(iii) Installed on an authorized area without written concurrence of the department; or
(iv) Not covered by an application for use of aquatic lands, or a lawsuit challenging such requirements, within ninety days after the date of mailing of the department's written notification of unauthorized occupancy of public aquatic lands.
(c) Only land rental and fees shall be charged for public aquatic lands occupied by those structures and improvements that are:
(i) Authorized in writing by the department;
(ii) Installed prior to June 1, 1971 (effective date of the Shoreline Management Act) on an area authorized for use from the department; or
(iii) Covered by an application for use of aquatic lands within ninety days after the date of mailing of the department's written notification of unauthorized occupancy of public aquatic lands.
(5) Insurance, bonds, and other security.
(a) The department may require authorized users of aquatic lands to carry insurance, bonding, or provide other forms of security as may be appropriate for the use or uses occurring on public property, in order to ensure its sustained utility and future value.
(b) Proof of coverage shall be acceptable to the department if provided by any of the following:
(i) Insurance and/or bonding companies licensed by the state;
(ii) Recognized insurance or bonding agent for the authorized user;
(iii) Savings account assignment from authorized user to department; or
(iv) Cash deposit.
(c) The amount of security required of each user shall be determined by the department and adjusted periodically as needed.
(i) Any portion of the required security relating to payment of rent or fees shall be limited to an amount not exceeding two year's rental or fees.
(ii) Required security related to other terms of the agreement shall be based on the estimated cost to the department of enforcing compliance with those terms.
(iii) Cash deposits shall not be required in an amount exceeding one-twelfth of the annual rental or fees. If this amount is less than the total required security, the remainder shall be provided through other forms listed in (b) of this subsection.
(d) Security must be provided on a continual basis for the life of the agreement. Security arrangements for less than the life of the agreement shall be accepted as long as those arrangements are kept in force through a series of renewals or extensions.
[Statutory Authority: RCW 79.01.132, 79.01.216, 79.90.520, 79.90.535 and 1991 c 64 §§ 1 and 2. 91-22-079 (Order 580), § 332-30-122, filed 11/5/91, effective 12/6/91. Statutory Authority: 1984 c 221 and RCW 79.90.540. 84-23-014 (Resolution No. 470), § 332-30-122, filed 11/9/84.]
(1) Overall considerations.
(a) Criteria for use of formula. The formula:
(i) Shall be applied to all leases having structural uses that require a physical interface with upland property when a water-dependent use occurs on such uplands (in conjunction with the water-dependent use on the aquatic lands);
(ii) Shall be used for remote moorage leases by selecting an upland parcel as detailed in subsection (2) of this section;
(iii) Shall not be used for areas of filled state-owned aquatic lands having upland characteristics where the department can charge rent for such fills (see WAC 332-30-125), renewable and nonrenewable resource uses, or areas meeting criteria for public use (see WAC 332-30-130); and
(iv) Shall cease being used for leases intended for water-dependent uses when the lease area is not actively developed for such purposes as specified in the lease contract. Rental in such situations shall be determined under the appropriate section of this chapter.
(b) Criteria for applicability to leases. The formula shall be used to calculate rentals for:
(i) All new leases and all pending applications to lease or re-lease as of October 1, 1984;
(ii) All existing leases, where the lease allows calculation of total rent by the appropriate department methods in effect at the time of rental adjustment. Leases in this category previously affected by legislated rental increase limits, shall have the formula applied on the first lease anniversary date after September 30, 1984. Other conditions of these leases not related to rent shall continue until termination or amendment as specified by the lease contract. Leases in this category not previously affected by legislated rental increase limits and scheduled for a rent adjustment after October 1, 1985, shall have the option of retaining the current rent or electing to pay the formula rent under the same conditions as specified in (iii) of this subsection.
(iii) Leases containing specific rent adjustment procedures or schedules shall have the rent determined by the formula when requested by the lessee. Holders of such leases shall be notified prior to their lease anniversary date of both the lease contract rent and formula rent. A selection of the formula rent by the lessee shall require an amendment to the lease which shall include all applicable aquatic land laws and implementing regulations.
(2) Physical criteria of upland tax parcels.
(a) Leases used in conjunction with and supportive of activities on the uplands. The upland tax parcel used shall be waterfront and have some portion with upland characteristics. If no upland tax parcel meets these criteria, then an alternative shall be selected under the criteria of subsection (4) of this section.
(b) Remote moorage leases. The upland tax parcel used shall be waterfront, have some portion with upland characteristics; and
(i) If the remote moorage is associated with a local upland facility, be an appropriate parcel at the facility; or
(ii) If the remote moorage is similar in nature of use to moorages in the area associated with a local upland facility, be an appropriate parcel at the facility; or
(iii) If the remote moorage is not associated with a local upland facility, be the parcel closest in distance to the moorage area.
(c) Priority of selection. If more than one upland tax parcel meets the physical criteria, the priority of selection shall be:
(i) The parcel that is structurally connected to the lease area;
(ii) The parcel that abuts the lease area;
(iii) The parcel closest in distance to the lease area.
If more than one upland tax parcel remains after this selection priority, then each upland tax parcel will be used for its portion of the lease area. If there is mutual agreement with the lessee, a single upland tax parcel may be used for the entire lease area. When the unit value of the upland tax parcels are equal, only one upland tax parcel shall be used for the lease area.
(d) The unit value of the upland tax parcel shall be expressed in terms of dollars per square foot or dollars per acre, by dividing the assessed value of the upland tax parcel by the number of square feet or acres in the upland tax parcel. This procedure shall be used in all cases even if the value attributable to the upland tax parcel was assessed using some other unit of value, e.g., front footage, or lot value. Only the "land value" category of the assessment record shall be used; not any assessment record category related to improvements.
(3) Consistent assessment. In addition to the criteria in subsection (2) of this section, the upland tax parcel's assessed value must be consistent with the purposes of the lease and method of rental establishment. On this basis, the following situations will be considered inconsistent and shall either require adjustment as specified, or selection of an alternative upland tax parcel under subsection (4) of this section:
(a) The upland tax parcel is not assessed. (See chapter 84.36 RCW Exemptions);
(b) Official date of assessment is more than four years old. (See RCW 84.41.030);
(c) The "assessment" results from a special tax
classification not reflecting fair market value. Examples
include classifications under: State-regulated utilities
(chapter 84.12 RCW), ((Reforestation lands (chapter 84.28 RCW),)) Timber and forest lands (chapter 84.33 RCW), and Open
space (chapter 84.34 RCW). This inconsistency may be
corrected by substituting the full value for the parcel if
such value is part of the assessment records;
(d) If the assessed valuation of the upland tax parcel to be used is under appeal as a matter of record before any county or state agency, the valuation on the assessor's records shall be used, however, any changes in valuation resulting from such appeal will result in an equitable adjustment of future rental;
(e) The majority of the upland tax parcel area is not used for a water-dependent purpose. This inconsistency may be corrected by using the value and area of the portion of the upland tax parcel that is used for water-dependent purposes if this portion can be segregated from the assessment records; and
(f) The size of the upland tax parcel in acres or square feet is not known or its small size results in a nominal valuation, e.g., unbuildable lot.
(4) Selection of the nearest comparable upland tax parcel. When the upland tax parcel does not meet the physical criteria or has an inconsistent assessment that can't be corrected from the assessment records, an alternative upland tax parcel shall be selected which meets the criteria. The nearest upland tax parcel shall be determined by measurement along the shoreline from the inconsistent upland tax parcel.
(a) The alternative upland tax parcel shall be located by order of selection priority:
(i) Within the same city as the lease area, and if not applicable or found;
(ii) Within the same county and water body as the lease area, and if not found;
(iii) Within the same county on similar bodies of water, and if not found;
(iv) Within the state.
(b) Within each locational priority of (a) of this subsection, the priority for a comparable upland tax parcel shall be:
(i) The same use class within the water-dependent category as the lease area use;
(ii) Any water-dependent use within the same upland zoning;
(iii) Any water-dependent use; and
(iv) Any water-oriented use.
(5) Aquatic land lease area. The area under lease shall be expressed in square feet or acres.
(a) Where more than one use class separately exist on a lease area, the formula shall only be applied to the water-dependent use area. Other use areas of the lease shall be treated according to the regulations for the specific use.
(b) If a water-dependent and a nonwater-dependent use exist on the same portion of the lease, the rent for such portion shall be negotiated taking into account the proportion of the improvements each use occupies.
(6) Real rate of return.
(a) Until July 1, 1989, the real rate of return to be used in the formula shall be five percent.
(b) On July 1, 1989, and on each July 1 thereafter the department shall calculate the real rate of return for that fiscal year under the following limitations:
(i) It shall not change by more than one percentage point from the rate in effect for the previous fiscal year; and
(ii) It shall not be greater than seven percent nor less than three percent.
(7) Annual inflation adjustment of rent. The department shall use the inflation rate on a fiscal year basis e.g., the inflation rate for calendar year 1984 shall be used during the period July 1, 1985 through June 30, 1986. The rate will be published in a newspaper of record. Adjustment to the annual rent of a lease shall occur on the anniversary date of the lease except when the rent is redetermined under subsection (9) of this section. The inflation adjustment each year is the inflation rate times the previous year's rent except in cases of stairstepping.
(8) Stairstepping rental changes.
(a) Initial increases for leases in effect on October 1, 1984. If the application of the formula results in an increase of more than one hundred dollars and more than thirty-three percent, stairstepping to the formula rent shall occur over the first three years in amounts equal to thirty-three percent of the difference between each year's inflation adjusted formula rent and the previous rent.
| Example | |||||||||||||
| Previous rent = $100.00 | Formula rent =$403.00 | Inflation = 5%/yr. |
|||||||||||
| Yr. | Formula Rent |
Previous Rent | Difference | 33% | Stairstep Rent |
||||||||
| 1 | $403.00 | $100.00 | $303.00 | $100.00 | $200.00 | ||||||||
| 2 | 423.15 | 100.00 | 323.15 | 106.64 | 306.64 | ||||||||
| 3 | 444.31 | 100.00 | 344.31 | 113.62 | 420.26 | ||||||||
| 4 | 466.52 | - | - | - | 466.52 | ||||||||
| Example | ||||||||||||
| Previous rent =$403.00 | Formula rent = $100.00 | Inflation = 5%/yr. |
||||||||||
| Yr. | Previous Rent | Formula Rent | Difference | 33% | Stairstep Rent |
|||||||
| 1 | $403.00 | $100.00 | $303.00 | $100.00 | $303.00 | |||||||
| 2 | 403.00 | 105.00 | 298.00 | 98.34 | 204.66 | |||||||
| 3 | 403.00 | 110.25 | 292.75 | 96.61 | 108.05 | |||||||
| 4 | - | 115.76 | - | - | 115.76 | |||||||
(d) If a lease in effect on October 1, 1984, contains a nonwater-dependent use in addition to a water-dependent or oriented use, the stairstepping provisions of (a) or (b) of this subsection:
(i) Shall apply to the water-dependent use area if it exists separately (see subsection (5)(a) of this section);
(ii) Shall not apply to any portion of the lease area jointly occupied by a water-dependent and nonwater-dependent use (see subsection (5)(b) of this section).
(e) Subsequent increases. After completion of any initial stairstepping under (a) and (b) of this subsection due to the first application of the formula, the rent for any lease or portion thereof calculated by the formula shall not increase by more than fifty percent per unit area from the previous year's per unit area rent.
(f) All initial stairstepping of rentals shall only occur during the term of existing leases.
(9) The annual rental shall be redetermined by the formula every four years or as provided by the existing lease language. If an existing lease calls for redetermination of rental during an initial stairstepping period, it shall be determined on the scheduled date and applied (with inflation adjustments) at the end of the initial stairstep period.
[Statutory Authority: 1984 c 221 and RCW 79.90.540. 84-23-014 (Resolution No. 470), § 332-30-123, filed 11/9/84.]
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 343, filed 7/3/80)
WAC 332-30-127
Unauthorized use and occupancy of aquatic
lands (see RCW ((79.01.471)) 79.105.200 and 79.125.200).
(1)
Aquatic lands determined to be state owned, but occupied for
private use through accident or without prior approval, may be
leased if found to be in the public interest.
(2) Upon discovery of an unauthorized use of aquatic land, the responsible party will be immediately notified of his status. If the use will not be authorized, he will be served notice in writing requiring him to vacate the premises within thirty days. If the law and department policy will permit the use, the occupant is to be encouraged to lease the premises.
(3) The trespassing party occupying aquatic lands without authority will be assessed a monthly use and occupancy fee for such use beginning at the time notification of state ownership is first provided to them and continuing until they have vacated the premises or arranged for a right to occupy through execution of a lease as provided by law.
(4) The use and occupancy fee is sixty percent higher than full fair market rental and is intended to encourage either normal leasing or vacation of aquatic land.
(5) In those limited circumstances when a use cannot be authorized by a lease even though it may be in the public interest to permit the structure or activity, the fair market rental will be charged and billed on an annual basis.
(6) The use and occupancy billing is to be made after the use has occurred and conveys no rights in advance. Payment is due by the tenth of the month following the original notification, and if not received, a notice is to be sent. If payment is not received within thirty days of this notice and monthly thereafter by the tenth of each month during the period of the use and occupancy lease or if the improvement has not been removed from the aquatic land, an unlawful detainer action against the party in trespass will be filed along with an action to collect past due rental.
[Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-127, filed 7/3/80.]
(1) Eligibility to request review. Any lessee or applicant to lease or release state-owned aquatic lands may request review of any rent proposed to be charged by the department.
(2) Dispute officers. The manager of the marine lands division will be the rental dispute officer (RDO). The supervisor of the department, or his designee, will be the rental dispute appeals officer (RDAO).
(3) Submittals. A request for review of the rent (an original and two copies) shall be submitted within thirty days of notification by the department of the rent due from the lessee/applicant. The request for review shall contain sufficient information for the officers to make a decision on the appropriateness of the rent initially determined by the department. The burden of proof for showing that the rent is incorrect shall rest with the lessee/applicant.
(4) Rental due. The request for review shall be
accompanied by one year's rent payment based on the preceding
year's rate, or a portion thereof as determined by RCW
((79.90.530)) 79.105.340; or based on the rate proposed by the
department, or a portion thereof as determined by RCW
((79.90.530)) 79.105.340, whichever is less. The applicant
shall pay any additional rent or be entitled to a refund, with
interest, within thirty days after completion of the review
process provided in this section.
(5) Contents of request. The request for review shall state what the lessee/applicant believes the rent should be and shall contain, at the minimum, all necessary documentation to justify the lessee/applicant's position. This information shall include but not be limited to:
(a) Rationale. Why the rent established by the department is inappropriate. The supporting documentation for nonwater-dependent leases may include appraisals by professionally accredited appraisers.
(b) Lease information. A description of state-owned aquatic land under lease which shall include, but not be limited to:
(i) Lease or application number;
(ii) Map showing location of lease or proposed lease;
(iii) Legal description of lease area including area of lease;
(iv) The permitted or intended use on the leasehold; and
(v) The actual or current use on the leasehold premises.
(c) Substitute upland parcel. A lessee/applicant whose
lease rent is determined according to RCW ((79.90.480))
79.105.240 (water-dependent leases) and who disputes the
choice of the upland parcel as provided by WAC 332-30-123,
shall indicate the upland parcel that should be substituted in
the rental determination and shall provide the following
information on the parcel:
(i) The county parcel number;
(ii) Its assessed value;
(iii) Its area in square feet or acres;
(iv) A map showing the location of the parcel; and
(v) A statement indicating the land use on the parcel and justifying why the parcel should be substituted.
(6) RDO review.
(a) The RDO shall evaluate the request for review within fifteen days of filing to determine if any further support materials are needed from the lessee/applicant or the department.
(b) The lessee/applicant or the department shall provide any needed materials to the RDO within thirty days of receiving a request from the RDO.
(c) The RDO may, at any time during the review, order a conference between the lessee/applicant and department staff to try to settle the rent dispute.
(d) The RDO shall issue a decision within sixty days of filing of the request. Such decision shall contain findings of fact for the decision. If a decision cannot be issued within that time, the lessee/applicant's request will automatically be granted and the rent proposed by the lessee/applicant will be the rent for the lease until the next rent revaluation; provided that, the RDO may extend the review period for one sixty-day period.
(7) RDAO review.
(a) The RDAO may, within fifteen days of the final decision by the RDO, be petitioned to review that decision.
(b) If the RDAO declines to review the petition on the decision of the RDO, the RDO's decision shall be the final decision of the RDAO.
(c) If the RDAO consents to review the decision, the review may only consider the factual record before the RDO and the written findings and decision of the RDO. The RDAO shall issue a decision on the petition containing written findings within thirty days of the filing of the petition. This decision shall be the RDAO's final decision.
(8) Board review.
(a) The board of natural resources (board) may, within fifteen days of the final RDAO decision, be petitioned to review that decision.
(b) If the board declines to review the petition, the RDAO decision shall be the final decision of the board.
(c) If the board decides to review the petition, the department and the lessee/applicant shall present written statements on the final decision of the RDAO within fifteen days of the decision to review. The board may request oral statements from the lessee/applicant or the department if the board decides a decision cannot be made solely on the written statements.
(d) The board shall issue a decision on the petition within sixty days of the filing of the written statements by the lessee/applicant and the department.
[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-128, filed 11/5/85.]
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending Order 710, filed 10/17/02,
effective 11/17/02)
WAC 332-30-139
Marinas and moorages.
(1) Moorage
facilities developed on aquatic lands should meet the
following design criteria:
(a) Moorage shall be designed so as to be compatible with the local environment and to minimize adverse esthetic impacts.
(b) Open moorage is preferred in relatively undeveloped areas and locations where view preservation is desirable, and/or where leisure activities are prevalent.
(c) Covered moorage may be considered in highly developed areas and locations having a commercial environment.
(d) Enclosed moorage should be confined to areas of an industrial character where there is a minimum of esthetic concern.
(e) In general, covered moorage is preferred to enclosed moorage and open moorage is preferred to covered moorage.
(f) View encumbrance due to enclosed moorage shall be avoided in those areas where views are an important element in the local environment.
(g) In order to minimize the impact of moorage demand on natural shorelines, large marina developments in urban areas should be fostered in preference to numerous small marinas widely distributed.
(h) The use of floating breakwaters shall be considered as protective structures before using solid fills.
(i) Dry moorage facilities (stacked dry boat storage) shall be considered as an alternative to wet storage in those locations where such storage will:
(i) Significantly reduce environmental or land use impacts within the water area of the immediate shoreline.
(ii) Reduce the need for expansion of existing wet storage when such expansion would significantly impact the environment or adjacent land use.
(2) Anchorages suitable for use by transient, recreational boaters will be identified and established by the department in appropriate locations so as to provide additional moorage space.
(3) Upland sewage disposal approved by local government and appropriate state agencies is required for all vessels used as a residence.
(4) The department shall work with federal, state, local government agencies and other groups to determine acceptable locations for marina development, properly distributed to meet projected public need for the period 1980 to 2010.
(5) The department may lease open water moorage and anchorage areas only to local governments that have authorized the establishment of open water moorage and anchorage areas in their local Shoreline Master Programs within five years of the effective date of this rule. With the department's approval, the local government lessee may install mooring buoys or other floating moorage devices, designate anchorage locations, sublease moorage and anchorage in the area, collect rent and fees for such moorage and anchorage, and otherwise manage the area as a moorage facility. All open water moorage and anchorage areas must meet the following requirements:
(a) Open water moorage and anchorage areas must meet all relevant requirements normally applicable to a marina lease, which may include the placement, design, limitation on the number of vessels or floating houses, and operation of the area and any improvements within the area, payment of rent to the department, consideration of navigational and environmental impacts, and all other applicable permits and other requirements of law.
(b) Open water moorage and anchorage areas may not be in a harbor area nor in any location or configuration that would interfere with water-borne commerce and navigation.
(c) The leasing of state-owned aquatic lands for open
water moorage and anchorage areas is subject to all
preferences accorded upland, tideland, or shoreland owners in
RCW ((79.94.070, 79.94.260, 79.94.280, 79.95.010)) 79.125.400,
79.125.460, 79.125.410, 79.130.010, and WAC 332-30-122.
(d) Any vessel used for residential use or floating house in an open water moorage and anchorage area must comply with WAC 332-30-171.
(e) Except for nongrandfathered floating house moorage as defined in WAC 332-30-171 (7)(a)(ii), nonwater-dependent uses and commercial uses are prohibited in open water moorage and anchorage areas. Uses prohibited by this subsection (e) are allowed when necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.
The department will not lease an open water moorage and anchorage area to an entity other than a local government agency. This restriction shall not affect use authorizations to public or private entities for mooring buoys, aquaculture net pens, or other floating structures otherwise allowed by law.
[Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-139, filed 10/17/02, effective 11/17/02. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-139, filed 7/3/80.]
(2) Eligibility. The permission shall apply only to the following:
(a) An "abutting residential owner," being the owner of record of property physically bordering on public aquatic land and either used for single family housing or for a multifamily residence not exceeding four units per lot.
(b) A "dock," being a securely anchored or fixed, open walkway structure visible to boaters and kept in good repair extending from the upland property, primarily used as an aid to boating by the abutting residential owner(s), and accommodating moorage by not more than four pleasure boats typical to the body of water on which the dock is located. Two or more abutting residential owners may install and maintain a single joint-use dock provided it meets all other design requirements of this section; is the only dock used by those owners; and that the dock fronts one of the owners' property.
(c) A "private recreational purpose," being a nonincome-producing, leisure-time, and discretionary use by the abutting residential owner(s).
(d) State-owned aquatic lands outside harbor areas designated by the harbor line commission.
(3) Uses not qualifying. Examples of situations not qualifying for the permission include:
(a) Yacht and boat club facilities;
(b) Floating houses, as defined in WAC 332-30-106(23), and vessels used as a residence (as defined in WAC 332-30-106(62));
(c) Resorts;
(d) Multifamily dwellings, including condominium ownerships, with more than four units;
(e) Uses other than docks such as launches and railways not part of the dock, bulkheads, landfills, dredging, breakwaters, mooring buoys, swim floats, and swimming areas.
(4) Limitations.
(a) The permission does not apply to areas where the state has issued a reversionary use deed such as for shellfish culture, hunting and fishing, or park purposes; published an allocation of a special use and the dock is inconsistent with the allocation; or granted an authorization for use such as a lease, easement, or material purchase.
(b) Each dock owner using the permission is responsible for determining the availability of the public aquatic lands. Records of the department are open for public review. The department will research the availability of the public aquatic lands upon written request. A fee sufficient to cover costs shall be charged for this research.
(c) The permission is limited to docks that conform to adopted shoreline master programs and other local ordinances.
(d) The permission is not a grant of exclusive use of public aquatic lands to the dock owner. It does not prohibit public use of any aquatic lands around or under the dock. Owners of docks located on state-owned tidelands or shorelands must provide a safe, convenient, and clearly available means of pedestrian access over, around, or under the dock at all tide levels. However, dock owners are not required to allow public use of their docks or access across private lands to state-owned aquatic lands.
(e) The permission is not transferable or assignable to anyone other than a subsequent owner of the abutting upland property and is continuously dependent on the nature of ownership and use of the properties involved.
(f) Vessels used as a residence and floating houses are not permitted to be moored at a private recreational dock, except when such moorage is necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.
(5) Revocation. The permission may be revoked or canceled if:
(a) The dock or abutting residential owner has not met the criteria listed in subsection (2) or (4) of this section; or
(b) The dock significantly interferes with navigation or with navigational access to and from other upland properties. This degree of interference shall be determined from the character of the shoreline and waterbody, the character of other in-water development in the vicinity, and the degree of navigational use by the public and adjacent property owners;
(c) The dock interferes with preferred water-dependent uses established by law; or
(d) The dock is a public health or safety hazard.
(6) Appeal of revocation. Upon receiving written notice
of revocation or cancellation, the abutting residential owner
shall have thirty days from the date of notice to file for an
administrative hearing under the contested case proceedings of
chapter ((34.04)) 34.05 RCW. If the action to revoke the
permission is upheld, the owner shall correct the cited
conditions and shall be liable to the state for any
compensation due to the state from the use of the aquatic
lands from the date of notice until permission requirements
are met or until such permission is no longer needed. If the
abutting residential owner disclaims ownership of the dock,
the department may take actions to have it removed.
(7) Current leases. Current lessees of docks meeting the criteria in this section will be notified of their option to cancel the lease. They will be provided a reasonable time to respond. Lack of response will result in cancellation of the lease by the department.
(8) Property rights. No property rights in, or boundaries of, public aquatic lands are established by this section.
(9) Lines of navigability. The department will not initiate establishment of lines of navigability on any shorelands unless requested to do so by the shoreland owners or their representatives.
(10) Nothing in this section is intended to address statutes relating to sales of second class shorelands.
[Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-144, filed 10/17/02, effective 11/17/02. Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-144, filed 11/5/85.]
(2) Priority consideration will be given to the preservation of the streamway environment with special attention given to preservation of those areas considered esthetically or environmentally unique.
(3) Bank and island stabilization programs which rely mainly on natural vegetative systems as holding elements will be encouraged.
(4) Research will be encouraged to develop alternative methods of channel control, utilizing natural systems of stabilization.
(5) Natural plant and animal communities and other features which provide an ecological balance to a streamway, will be recognized in evaluating competing human use and protected from significant human impact.
(6) Normal stream depositions of logs, uprooted tree snags and stumps which abut on shorelands and do not intrude on the navigational channel or reduce flow, or adversely redirect a river course, and are not harmful to life and property, will generally be left as they lie, in order to protect the resultant dependent aquatic systems.
(7) Development projects will not, in most cases, be permitted to fill indentations such as mudholes, eddies, pools and aeration drops.
(8) Braided and meandering channels will be protected from development.
(9) River channel relocations will be permitted only when an overriding public benefit can be shown. Filling, grading, lagooning or dredging which would result in substantial detriment to navigable waters by reason of erosion, sedimentation or impairment of fish and aquatic life will not be authorized.
(10) Sand and gravel removals will not be permitted below
the wetted perimeter of navigable rivers except as authorized
under a departments of fisheries and game hydraulics permit
(RCW ((75.20.100)) 75.55.100). Such removals may be
authorized for maintenance and improvement of navigational
channels.
(11) Sand and gravel removals above the wetted perimeter of a navigable river (which are not harmful to public health and safety) will be considered when any or all of the following situations exist:
(a) No alternative local upland source is available, and then the amount of such removals will be determined on a case by case basis after consideration of existing state and local regulations.
(b) The removal is designed to create or improve a feature such as a pond, wetland or other habitat valuable for fish and wildlife.
(c) The removal provides recreational benefits.
(d) The removal will aid in reducing a detrimental accumulation of aggregates in downstream lakes and reservoirs.
(e) The removal will aid in reducing damage to private or public land and property abutting a navigable river.
(12) Sand and gravel removals above the wetted perimeter of a navigable river will not be considered when:
(a) The location of such material is below a dam and has inadequate supplementary feeding of gravel or sand.
(b) Detached bars and islands are involved.
(c) Removal will cause unstable hydraulic conditions detrimental to fish, wildlife, public health and safety.
(d) Removal will impact esthetics of nearby recreational facilities.
(e) Removal will result in negative water quality according to department of ecology standards.
(13) Bank dumping and junk revetment will not be permitted on aquatic lands.
(14) Sand and gravel removal leases shall be conditioned to allow removal of only that amount which is naturally replenished on an annual basis.
[Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-163, filed 7/3/80.]
(1) Eligibility criteria. The department may consider exchanging ownership of tidelands or shorelands with private and other public landowners if the proposed exchange meets the eligibility criteria set forth in (a) and (b) of this subsection.
(a) The economic values of the parcels must be equal or the exchange must result in a net economic gain to the state. The economic value must be determined by a qualified independent appraiser and/or economist and accomplished through a methodology accepted by the department.
(b) The tidelands or shorelands to be conveyed into state ownership must abut navigable water.
(2) Evaluation criteria. Subject to available funding, the department will evaluate eligible proposed exchanges according to the following criteria. The department will give priority and preference to proposed exchanges which, in the department's judgment, are in the public interest by providing the greatest public benefits, the least negative impacts, and the most appropriate resolution of other considerations, as set forth in (a), (b) and (c) of this subsection.
(a) The tidelands or shorelands to be conveyed into state ownership must have one or more of the following characteristics:
(i) Be or abut a critical and/or an essential habitat identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or the United States Department of Fish and Wildlife;
(ii) Be or abut a critical area identified by jurisdictions under chapter 36.70A RCW;
(iii) Be an area beneficial to sediment transport and/or nearshore habitat function identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or the United States Department of Fish and Wildlife;
(iv) Be actively used or abut a parcel used in the commercial production of food or fibre or other renewable resource production (for example, commercial grade beds of shellfish and aquaculture facilities);
(v) Abut a state or national wildlife refuge;
(vi) Abut an upland parcel with public upland ownership, easements, or some other formalized agreement that would allow direct public use of and access to the water;
(vii) Be actively used or abut parcel(s) actively used for water-dependent uses or allow for water dependent use;
(viii) Contain a historic or archaeological property listed on or eligible to be listed on the National Register of Historic Places; or
(ix) Generate or have the potential to generate higher
revenues than the parcel being transferred out-of-state
ownership in a manner consistent with the benefits listed in
RCW ((79.90.455)) 79.105.030.
(b) The proposed exchange must have beneficial or no negative impacts on:
(i) Navigation;
(ii) The diversity and health of the local environment including the production and utilization of renewable resources;
(iii) The quantity and quality of public access to the waterfront;
(iv) Treaty rights of federally recognized tribes. The department will solicit comments on a proposed exchange from affected tribes; and
(v) Hazardous waste and contaminated sediments liability issues.
(c) The following issues must also be considered:
(i) Consistency with plans and development guidelines of public ports, counties, cities and other local, state, and federal agencies;
(ii) The relative manageability of the tidelands or shorelands to be exchanged including, but not limited to, the effect of the exchange on management costs, liability and upland access, and the relative proximity of the tidelands or shorelands to be exchanged to other state-owned shorelands or tidelands; and
(iii) The cumulative impacts of similar exchanges on water dependent uses, nonrenewable and renewable natural resources, and total aquatic lands acreage managed by the department.
(3) Recommendation to the board of natural resources. The department will provide its recommendations to the board of natural resources in writing, addressing whether the exchange meets the criteria in this rule and the positive and negative impacts of the exchange on public benefits and resources. The department will provide copies of its recommendations to the proponent of the exchange. In general, an exchange should only be recommended by the department and approved by the board of natural resources when, in the department's and the board's judgment, the public benefits associated with the exchange outweigh the negative impacts or other diminution in public benefits.
[Statutory Authority: RCW 79.90.457. 99-07-034 (Order 640), § 332-30-170, filed 3/11/99, effective 4/11/99.]
(2) Limits on the number of residential uses. Residential uses on state-owned aquatic lands shall only occur in accordance with all federal, state, and local laws. The following apply only to leases entered into following the effective date of this rule unless otherwise provided in subsection (3) of this section.
(a) The total number of slips which may be allocated for residential uses in any marina, pier, open water moorage and anchorage area, or other moorage facility shall be limited to ten percent of the total number of slips within a marina, unless otherwise established as provided in (b) or (c) of this subsection. For the purposes of determining the exact number of residential slips, the department shall round to nearest whole number.
(b) Upon the effective date of this rule, the ten percent limit can be changed by local government, through amendments to the local shoreline master program and/or issuance of a shoreline substantial development conditional use permit, if all of the following conditions are met:
(i) Methods to handle the upland disposal and best management practices for the increased waste associated with residential use are expressly addressed and required; and
(ii) Specific locations for residential use slips do not adversely impact habitat or interfere with water-dependent uses.
(c) If a local shoreline master program or local ordinance has established a different percentage limit prior to the date this rule takes effect, the limit established in that shoreline master program or local ordinance shall be the recognized percentage limit. After the effective date of this rule, changes to the percentage limit shall only be recognized by DNR as the percentage limit if the changes are made through amendments to the Shoreline Master Program or adoption of a shoreline substantial development conditional use permit.
(d) Application of the percentage limit to moorage facilities that occupy both state-owned aquatic and privately owned aquatic lands.
(i) If the city or county jurisdiction has not established a percentage limit, then the total number of vessels used as a residence and floating houses in any moorage facility shall be limited to ten percent of the total number of slips or spaces usable for moorage or anchorage in that facility. In this case, when a moorage facility occupies both state-owned and nonstate-owned aquatic lands, the percent limit will be calculated using only the total number of slips that are located on state-owned aquatic lands and will be applied only to the portion of the facility located on state-owned aquatic lands.
(ii) If a county or city has established a percent limit, and a moorage facility occupies both state-owned and nonstate-owned aquatic lands, the department may authorize any or all of the floating houses or vessels with residential uses within the entire facility to be located in the portion of the facility on state-owned aquatic lands.
(e) If a moorage facility has so few moorage slips or spaces that the percent limit allows for less than one residential use slip, then one residential use slip may be authorized, if not otherwise prohibited by the city or county jurisdiction.
(3) Excess residential use slips.
(a) This subsection shall apply to all lessees occupying state-owned aquatic lands under written leases with the department as of the effective date of this rule. Within one hundred eighty days of the effective date of this rule, each existing moorage facility lessee shall document the existing percentage of residential use slips within their facility and report this information to the department. This reported percentage shall be referred to as the "reported existing percentage" for the moorage facility lessee.
(i) If the reported existing percentage of residential use slips is greater than the ten percent limit established in this rule, or other locally established limit as described in subsection (2)(b) or (c) of this section, then the reported existing percentage will establish the allowable residential use percentage at the beginning of a new lease for the same moorage facility, regardless of whether ownership of the facility changes subject to attrition described in subsection (3)(b) of this section. At the time the new lease is entered into, those residential uses in excess of the reported existing percentage will be required to vacate the moorage facility.
(ii) If the reported existing percentage of residential use slips is less than or equal to the ten percent limit established in this rule, or other locally established limit as described in subsection (2)(b) or (c) of this section, then the percentage limit established in this rule, or other locally established limit as described in subsection (2)(b) or (c) of this section, will establish the allowable residential use percentage at the beginning of a new lease for the same moorage facility, regardless of whether ownership of the facility changes. At the time the new lease is entered into, those residential uses in excess of the ten percent limit established in this rule, or other locally established limit as described in subsection (2)(b) or (c) of this section, will be required to vacate the moorage facility.
(iii) If a moorage facility lessee fails to report the existing percentage of residential slips within their facility within one hundred eighty days of the effective date of this rule, then the percentage limit established in this rule, or other locally established limit as described in subsection (2)(b) or (c) of this section, will establish the allowable residential use percentage at the beginning of a new lease for the same moorage facility, regardless of whether ownership of the facility changes. At the time the new lease is entered into, those residential uses in excess of the ten percent limit established in this rule, or other locally established limit as described in subsection (2)(b) or (c) of this section, will be required to vacate the moorage facility.
(b) The purpose of this subsection is to describe the process of attrition used to reach compliance with the percentage limit or locally established percentage limit. For all leases entered into following the effective date of this rule, if there are more residential use slips in a moorage facility than allowed by the percent limit, then no new or additional residential use slips, including replacements for grandfathered floating houses under subsection (7)(a) of this section, shall be authorized in that facility. In such cases, any residential uses that leave the facility for a period of time greater than thirty days may not return to the facility until the total number of residential use slips is below the percent limit. For purposes of counting the thirty days described in this subsection (3)(b), the department shall not include time needed for repairs to the vessels or floating houses, nor any time when a vessel is away from the moorage facility but the owner or operator of the vessel continuously maintains a written moorage agreement for that facility.
(c) Marina owners, operators, and/or managers may decrease the ten percent limit on a site-specific basis.
(4) Waste disposal. The following apply to all leases entered into following the effective date of this rule:
(a) Sewage. All treated and untreated sewage shall be disposed of upland, in accordance with federal, state, and local laws. This section does not require specific disposal methods so long as the measures established by the lessee and the department ensure upland disposal.
(b) Oil and toxic substances. All oil, grease, corrosive liquids, and other toxic substances shall be disposed of upland, in accordance with federal, state, and local laws. This section does not require specific disposal methods so long as the measures established by the lessee and the department ensure upland disposal.
(c) Solid waste. All solid waste shall be disposed of upland, in accordance with federal, state, and local laws. This section does not require specific disposal methods so long as the measures established by the lessee and the department ensure upland disposal.
(d) Gray water. All gray water shall be disposed of in accordance with federal, state, and local laws. Moorage facilities shall develop and implement best management practices to avoid, to the maximum extent possible, all discharges into waters above state-owned aquatic land, of wastewater from showers, baths, sinks, laundry, decks, and other miscellaneous sources, otherwise known as "gray water." For those unavoidable discharges, the best management practices shall minimize discharges, to the maximum extent possible, of gray water from showers, baths, sinks, laundry, decks, and other miscellaneous sources.
(5) Responsibilities of lessees with residential uses. The following apply to leases entered into following the effective date of this rule:
(a) Each department lessee must establish and implement measures satisfactory to the department for ensuring upland waste disposal, and the avoidance or minimization of any discharge of waste, as described in (c) of this subsection, onto or in the waters above state-owned aquatic lands from vessels used for residential use and floating houses. This shall include a contingency plan in case of failure or unavailability of the waste disposal methods identified by the lessee and approved by the department.
(b) Each department lessee must annually, or as otherwise provided in the lease, provide the department with evidence that all vessels used for residential use and floating houses in their facility comply with this rule and the terms of the department lease.
(c) Each department lessee shall fully describe the waste disposal measures. These measures may include, but are not limited to:
(i) Connection to an upland sewage system;
(ii) Periodic sewage pump-out service, either at a pump-out station or with transportable pump-out equipment, including prepayment for such services and proof of participation by residential occupants;
(iii) Installation of appropriate waste receptacles;
(iv) Back-up and clean-up facilities and procedures as needed in case of failure or temporary unavailability of waste disposal systems;
(v) Educational efforts, such as posting of notices, distribution of information, and training for residents on waste disposal methods and requirements;
(vi) Monitoring of activities within the facility to prevent or identify and remedy improper waste disposal;
(vii) Contractual requirements in moorage subleases requiring proper waste disposal by residents; and/or
(viii) Other best management practices and/or best available technologies that are established by any local, state, or federal agency, including the department, or by any appropriate nongovernmental organization, that are satisfactory to the department to ensure upland disposal of waste and avoid or minimize any discharge of waste onto or in the waters above state-owned aquatic lands.
(d) Consistent with all federal, state, and local laws and regulations, all leases issued by the department after the effective date of this rule for moorage facilities with residential uses within them shall require and specify:
(i) Methods to handle the upland disposal and best management practices for the increased waste associated with residential use;
(ii) Specific locations for residential use slips that do not adversely impact habitat or interfere with water-dependent uses.
(6) Vessels. Moorage of a vessel, as defined in WAC 332-30-106(74), is a water-dependent use.
(7) Floating houses. Moorage of a floating house, as defined in WAC 332-30-106(23), is a water-oriented use.
(a) Classifying floating house moorage under RCW
((79.90.465(2))) 79.105.060(25). In classifying floating
house moorage under ((RCW 79.90.465(2))) 79.105.060(25), the
department will apply the following rules:
(i) If a floating house moorage site had a floating house moored there under a department lease on October 1, 1984, or if a floating house was moored there for at least three years before October 1, 1984, then the department will classify that site as a water-dependent use for the purposes of determining rent. Such sites may be referred to as "grandfathered" sites.
(ii) If a floating house moorage site did not have a floating house moored there under a department lease on October 1, 1984, nor for at least three years before October 1, 1984, then the department shall classify that site as a nonwater-dependent use. Such sites may be referred to as "nongrandfathered" sites.
(iii) The classification of a grandfathered or nongrandfathered floating house moorage site applies to the specific aquatic land being utilized for moorage of the floating house, not to the floating house itself.
(iv) The department shall classify each individual floating house moorage slip within a moorage facility as a separate site. This may result in a marina containing both grandfathered and nongrandfathered floating house moorage sites.
(v) If a floating house vacates a grandfathered moorage site and either returns within thirty days or is replaced with another floating house within thirty days, then the moorage site will remain grandfathered.
(vi) If a floating house vacates a grandfathered moorage site and does not return within thirty days, future moorage of that floating house in the same or a different site shall be nongrandfathered, unless the floating house qualifies as a replacement floating house under (a)(v) of this subsection.
(vii) After October 1, 1984, if a grandfathered site ceased or ceases being used for floating house moorage for more than thirty consecutive days, then the site shall no longer be grandfathered.
(viii) When counting the thirty days described in (a)(v) through (vii) of this subsection, the department will exclude any reasonable time needed for repair of the floating house.
(ix) If a lessee redesignates a grandfathered floating house moorage slip within the lease area, consistent with the lease requirements, and notifies the department in advance of where the slip is to be relocated, then the slip will remain grandfathered. However, if a nongrandfathered site has a floating house relocated to it after the effective date of this rule, the site shall not be designated as grandfathered as provided in this subsection, (7)(a)(ix).
(x) If a floating house was moored at a grandfathered site on October 1, 1984, but was relocated to a site authorized by the department so that on the effective date of this rule the floating house is moored at a nongrandfathered site, then the department may classify this new location as a grandfathered site if the floating house meets all of the following criteria:
(A) The floating house was on state-owned aquatic land leased on October 1, 1984, or was on state-owned aquatic lands for three years prior to October 1, 1984;
(B) The floating house was continuously on state-owned aquatic lands from October 1, 1984, until the effective date of this rule, except for any reasonable time needed for repair of the house; and
(C) The department receives, within one year after the effective date of this rule, a request to have the current moorage site classified as a grandfathered site.
(b) Managing grandfathered floating house moorage. Floating houses moored in grandfathered sites that meet all applicable laws and rules, and are consistent with all lease requirements, may remain. The department shall charge the water-dependent rental rate for such moorage.
(c) Managing nongrandfathered floating house moorage.
(i) The department may authorize floating house moorage at a nongrandfathered site only if the department determines that the following conditions are met:
(A) All conditions as set forth in this section;
(B) The specific sites and circumstances for floating house moorage have been identified in an adopted local shoreline management plan that provides for the present and future needs of all uses, considers cumulative impacts to habitat and resources of statewide value, identifies specific areas or situations in which floating house moorage will be allowed, and justifies the exceptional nature of those areas or situations; and
(C) The floating house moorage is compatible with water-dependent uses existing in or planned for the area.
(ii) If a floating house is moored at a nongrandfathered site that does not meet the conditions in (c)(i) of this subsection, but the site is authorized by a department lease and the floating house and moorage meet all conditions as set forth in this section and is consistent with all lease requirements, then the floating house may remain until the termination of the lease or one year after the effective date of this rule, whichever is later. Thereafter, unless at that time the floating house meets the conditions in (c)(i) of this subsection, the floating house must vacate the nongrandfathered site.
(iii) If a floating house is moored at a nongrandfathered site that does not meet the conditions in (c)(i) of this subsection and is not authorized by a department lease, then the floating house must vacate the site within one year from the effective date of this rule, unless at that time it meets the conditions in (c)(i) of this subsection and the department chooses to grant a lease.
(iv) For nongrandfathered floating house moorage sites, the department shall charge the nonwater-dependent rental rate. If a leased area contains both nongrandfathered floating house moorage along with grandfathered floating house moorage or other water-dependent uses, then the nonwater-dependent rental rate shall be applied to a proportionate share of any common areas used in conjunction with the nongrandfathered floating house moorage, including, but not limited to, docks, breakwaters, and open water areas for ingress and egress to the facility.
(8) Open water moorage. For the purposes of this section, open water moorage and anchorage areas are defined in WAC 332-30-106(45).
(a) Vessels used for residential use and floating houses shall be moored, anchored, or otherwise secured only at a marina, pier, or similar fixed moorage facility that is connected to the shoreline, or in open water moorage and anchorage areas described under WAC 332-30-139(5) and subject to the restrictions therein. Vessels used for residential use and floating houses shall not be moored, anchored or otherwise secured in open waters above state-owned aquatic lands away from a fixed moorage facility that is connected to the shoreline, nor be moored, anchored, or otherwise secured to any natural feature in the water or on the shoreline, except within an open water moorage and anchorage area. A vessel used for residential use or floating house may moor in areas prohibited by this subsection (8)(a) when necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.
(b) Any vessel used for residential use or floating house that is moored on state-owned aquatic lands on the effective date of this rule, and complies with all other applicable laws and all lease requirements, but does not comply with (a) of this subsection, may remain until one year after the effective date of this rule or until the termination date of the existing department lease, whichever is later. Thereafter, unless at that time it meets the conditions in (a) of this subsection, the vessel used for residential use or floating house must vacate the site. The department shall not authorize or reauthorize any moorage for vessels used for residential use or floating houses that do not comply with (a) of this subsection.
[Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-171, filed 10/17/02, effective 11/17/02.]