PROPOSED RULES
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Amendments to WAC 461-08-500 Scope of review and burden of proof and amendments to WAC 461-08-505 Standard of review.
Purpose: The purpose of these rule amendments is to clarify that the scope of review by the Shorelines Hearings Board is de novo and the standard of review if preponderance of the evidence unless otherwise required by law. These proposed amendments also clarify that the standards referenced in that rule are legal criteria the board will consider in its decision-making process rather than standards of review.
Statutory Authority for Adoption: RCW 90.58.175.
Statute Being Implemented: Chapter 90.58 RCW.
Summary: The purpose of these rule amendments is to clarify that the scope of review by the Shorelines Hearings Board is de novo and the standard of review if preponderance of the evidence unless otherwise required by law. The purpose of the proposed amendments is to also clarify that the standards referenced in that rule are legal criteria the board will consider in its decision-making process rather than standards of review.
Reasons Supporting Proposal: The current rule has improperly labeled a de novo review as a standard of review. This has led to some confusion and needs to be clarified. Clarification would help litigants understand what standard of review is applicable under the law.
Name of Agency Personnel Responsible for Drafting: Deborah L. Mull, Environmental Hearings Office, (360) 459-6327; Implementation and Enforcement: Robert V. Jensen, Environmental Hearings Office, (360) 459-6327.
Name of Proponent: Shorelines Hearings Board, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of these rule amendments is to clarify that the scope of review by the Shorelines Hearings Board is de novo and the standard of review if preponderance of the evidence unless otherwise required by law. The purpose of the proposed amendments is to also clarify that the standards referenced in that rule are legal criteria the board will consider in its decision-making process rather than standards of review. The purpose of the rule amendments is to provide guidance to persons who litigate before the Shorelines Hearings Board. It is anticipated that the guidance will help the hearing process be more efficient for the board members and the litigants.
Proposal Changes the Following Existing Rules: The proposed amendment to WAC 461-08-500 clarifies that the scope of review by the Shorelines Hearings Board is de novo and the standard of review is a preponderance of the evidence unless otherwise required by law. The proposed amendment to WAC 461-08-505 clarifies that the standards referenced in that rule are legal criteria the board will consider in its decision-making process rather than standards of review.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The preparation of a small economic impact statement is not required for adoption of rules described in RCW 34.05.310(4). The proposed amendment is a rule described in RCW 34.05.310(4). Specifically, the proposed amendment is a rule that adopts, amends, repeals "a procedure, practice, or requirement relating to agency hearings." RCW 34.05.301 [34.05.310] (4)(g)(i).
RCW 34.05.328 does not apply to this rule adoption. The Shorelines Hearings Board is not an agency specifically listed in RCW 34.05.328.
Hearing Location: Environmental Hearings Office, 4224 6th Avenue S.E., Lacey, WA, on November 30, 2001, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Deborah L. Mull by November 16, 2001.
Submit Written Comments to: Deborah L. Mull, Environmental Hearings Office, P.O. Box 40903, Lacey, WA 98504-0903, fax (360) 438-7699, by December 21, 2001.
Date of Intended Adoption: January 14, 2002.
September 24, 2001
Deborah L. Mull
Administrative Appeals Judge
(a) Petitions for review of department decisions to adopt or approve rules, regulations or guidelines pursuant to chapter 90.58 RCW; and
(b) Petitions for review to approve, reject or modify a proposed master program or master program amendment.
(2) The standard of review shall be preponderance of the evidence unless otherwise required by law.
(2) Persons requesting review pursuant to RCW 90.58.180 (1) and (2) shall have the burden of proof in the matter. The issuing agency shall have the initial burden of proof in cases involving penalties or regulatory orders.
[Statutory Authority: RCW 90.58.175. 96-15-002, § 461-08-500, filed 7/3/96, effective 8/3/96.]
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 96-15-002, filed 7/3/96)
WAC 461-08-505
Legal criteria Standard of review.
(1) In
deciding upon a petition for review brought pursuant to RCW 90.58.180 (1) and (2) the board shall make its decision
considering the following legal criteria standards:
(a) Consistency with the requirements of chapter 43.21C RCW, the State Environmental Policy Act.
(b) From June 1, 1971, until such time as an applicable master program has become effective, whether the action of the local government unit is consistent with:
(i) The policy of RCW 90.58.020; and
(ii) The guidelines and regulations of the department; and
(iii) So far as can be ascertained the master program being developed for the area.
(c) After adoption or approval, as appropriate, by the department of an applicable master program, whether the action of the local government is consistent with the applicable master program and the provisions of chapter 90.58 RCW; and the department's implementing regulations.
(2) Evidence that is material and relevant to determination of the matter consistent with the standards set out in subsection (1) of this section, subject to these rules, shall be admitted into the record whether or not such evidence had been submitted to the local government unit.
[Statutory Authority: RCW 90.58.175. 96-15-002, § 461-08-505, filed 7/3/96, effective 8/3/96.]
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 typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.