PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 06-07-039.
Title of Rule and Other Identifying Information: Amend procedural provisions in chapters 173-18, 173-20, 173-22, and 173-27 WAC pertaining to the Shoreline Management Act (SMA).
Hearing Location(s): Renton Technical College, Building H, Rooms 102 and 103, 3000 N.E. Fourth Street, Renton, WA 98056-4195, on September 21, 2006, at 6:00 p.m.; at the Lower Columbia College, Student Center Conference Room A and B, 1600 Maple Street, Longview, WA 98632, on September 25, 2006, at 6:00 p.m.; at the Veterans Hall, Wenatchee Community Center, 504 South Chelan Avenue, Wenatchee, WA 98801-2914, on September 26, 2006, at 6:00 p.m.; and at the Spokane Falls Community College, Student Union Building Lounges A and B, 3410 West Fort George Wright Drive, Spokane, WA 99224-5204, on September 27, 2006, at 6:00 p.m.
Date of Intended Adoption: November 1, 2006.
Submit Written Comments to: Tom Clingman, SMA Rule, SEA Program, Department of Ecology, P.O. Box 476000 [47600], Olympia, WA 98504-7600, e-mail tcli461@ecy.wa.gov, fax (360) 407-6902, by 5:00 p.m., October 4, 2006.
Assistance for Persons with Disabilities: Contact SEA Program by September 8, 2006, TTY (877) 833-6341 or (360) 407-6600.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Topics proposed for amendment include, but are not limited to: Definitions; rules describing "jurisdiction" (coverage) of the Shoreline Management Act; permit thresholds and procedures; and other amendments to ensure conformity with existing statutes, NOAA guidance, and hearing board and court decisions. Additional revisions are proposed to improve clarity of administration.
The existing rules delineating "shorelines of the state" have not been systematically updated since adoption in the 1970s. Beginning in 2006, ecology will be reviewing and approving updated shoreline master programs, which will include updated maps and descriptions of shorelines of the state. Revision of the rules is necessary to preclude any apparent conflict between the updated maps contained in new ecology-approved shoreline master programs and the outdated rule lists of shoreline water bodies. In addition, state and federal statutes have been amended and ecology is amending the rules listed above to ensure conformity with these changes. Outcome of hearing board and court cases on point with the existing rules need to be incorporated to ensure conformity with the case decisions. Additional revisions are proposed to improve clarity of administration.
Reasons Supporting Proposal: Clarify process for updating shorelines of the state to preclude conflict between updated shoreline master programs and the existing lists by county in the ecology rules; update rules to reflect changes in statute, case law and federal guidance; improve clarity.
Statutory Authority for Adoption: RCW 90.58.030 (3)(e), 90.58.045, 90.58.065, 90.58.140(9), 90.58.143, 90.58.147, 90.58.200, 90.58.355, 90.58.390, 90.58.515, 43.21K.080, 71.09.250, 71.09.342, 77.55.181, 89.08.460, chapters 70.105D, 80.50 RCW.
Statute Being Implemented: Chapter 90.58 RCW, Shoreline Management Act of 1971.
Rule is necessary because of state court decision, 105 Wn. App. 278; WA Court of Appeals 28073-6-II; Thurston County case 95-2-01041-2.
Name of Proponent: Department of ecology, governmental.
Name of Agency Personnel Responsible for Drafting: Tom Clingman, Department of Ecology Headquarters, (360) 407-7448; Implementation and Enforcement: Peter Skowlund, Department of Ecology Headquarters, (360) 407-6522.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
The department of ecology proposes to amend its rules to eliminate these lists of water bodies in Washington Administrative Code. New rule language allows local jurisdictions to provide updated mapping and lists as part of their shoreline management plan. The proposed rule amendment will provide consistency of information and avoid potential legal conflicts between ecology's current (old WAC) rule language and updated (new) local shoreline master programs.
Objective of the SBEIS: The objective of this small business economic impact statement (SBEIS) is to identify and evaluate the various requirements and costs that the proposed rule or rule amendments might impose on business. In particular, the SBEIS examines whether the costs on business that might be imposed by the proposed rule amendments impose a disproportionate impact on the state's small businesses. This is consistent with the legislative purpose of the Regulatory Fairness Act (chapter 19.85 RCW) and is set out in RCW 19.85.011:
"The legislature finds that administrative rules adopted
by state agencies can have a disproportionate impact on the
state's small businesses because of the size of those
businesses. This disproportionate impact reduces competition,
innovation, employment, and new employment opportunities, and
threatens the very existence of some small businesses. The
legislature therefore enacts the Regulatory Fairness Act with
the intent of reducing the disproportionate impact of state
administrative rules on small business."
The specific purpose and required contents of the SBEIS
is contained in RCW 19.85.040. (The bracketed numbers and
emphasized words are for the reader's convenience, and reflect
some of the organization of this draft SBEIS.)
a. Cost per employee b. Cost per hour of labor c. Cost per hundred dollars of sales (2) A small business economic impact statement must also
include: a. [6] A statement of the steps taken by the agency to
reduce the costs of the rule on small businesses as required
by RCW 19.85.030(3), or reasonable justification for not doing
so, addressing the options listed in RCW 19.85.030(3). b. [7] A description of how the agency will involve small
business in the development of the rule; and c. [8] A list of industries that will be required to
comply with the rule. However, this subsection (2) (c) shall
not be construed to preclude application of the rule to any
business or industry to which it would otherwise apply."
"(1) A small business economic impact statement must
include [1] a brief description of the reporting, record
keeping, and other compliance requirements of the proposed
rule, and [2] the kinds of professional services that a small
business is likely to need in order to comply with such
requirements. [3] It shall analyze the costs of compliance
for businesses required to comply with the proposed rule
adopted pursuant to RCW 34.05.320, including costs of
equipment, supplies, labor and increased administrative costs.
[4] It shall consider, based on input received, whether
compliance with the rule will cause businesses to lose sales
or revenue. [5] To determine whether the proposed rule will
have a disproportionate impact on small businesses, the impact
statement must compare the costs of compliance for small
businesses with the cost of compliance for the ten percent of
businesses that are the largest businesses required to comply
with the proposed rules using one or more of the following as
a basis for comparing costs:
For purposes of an SBEIS, the terms "business," "small business," and "Industry" are defined by RCW 19.85.020. "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees. "Industry" means all of the businesses in this state in any one four-digit standard industrial classification as published by the United States Department of Commerce.
Costs Imposed on Businesses: The proposed rule amendments are directed at local governments who are reviewing the condition of their shorelines and who will be adopting updated SMPs. The proposed updates only administratively clarify rule language and eliminate redundancy.
Since no business is directly affected by the rule update no costs or disproportionality can be assumed. As discussed above, the proposed rule updates do not require any "business" to conduct ongoing reporting or record keeping. Nothing in the proposed rules are likely to result in increased administrative costs, or add general requirements for equipment, supplies or labor for businesses in general.
Whether the Proposed Rule Will Have a Disproportionate Impact on Small Businesses: This analysis is provided to meet the guidelines of the Regulatory Fairness Act (chapter 19.85 RCW). To comply with the RFA, the SBEIS must identify potentially affected industries, define small and large businesses, and determine the compliance costs for these businesses. It then must compare the cost of compliance for small businesses with the cost of compliance for large businesses. If there turns out to be a disproportionate impact on small businesses in comparison with large businesses, the RFA requires that the costs imposed by the rule on small businesses be reduced where legal and feasible in meeting the objective of the statutes upon which the rule is based. If steps are not taken to reduce costs on small business, the agency must provide reasonable justification for not doing so.
As noted previously no small business are directly affected by the current rule amendments.
Actions Taken to Reduce the Impact of the Rule on Small Business: Because proposed updated rule language only clarifies existing language, no direct impacts to small businesses exist. It is assumed without an impact from the new rule, there is also no need for mitigation of impacts.
Mitigation requirements are also intended to allow opportunity for creative approaches and a wide variety of alternatives. It is assumed local shoreline management programs would use mitigation techniques in the development of their program. These local programs can use specific local approaches that minimize cost impacts to local business interests.
How Business Was Involved in Development of the Proposed Rule: Ecology distributed early versions of draft rule text to various persons and organizations including business oriented associations. Ecology provided them with background information on the rule update, rule revised rule text and requested their comments and concerns. These distributions occurred in September 2005 and May 2006 to the following 'business' parties: Association of Washington Business, Washington Association of Realtors, Washington State Farm Bureau, Washington State Grange, Associated General Contractors, Washington Aggregates and Concrete Association, Building Industry Association of Washington, Association of Washington Business Land Use Policy committee.
On several occasions ecology's SEA program senior policy and legislative lead staff discussed the proposed rule amendments with the Association of Washington Business Land Use Policy committee via e-mail, phone and in-person meetings.
List of Industries Required to Comply with the Proposed Guidelines: No industries will be required to comply with current rule amendments.
Conclusions: The proposed rule amendments administratively clarify rule language, and eliminate redundancy. The rule amendments only affect local government, not small business.
References:
1. Washington State Department of Ecology, Small Business Economic Impact Statement: Shoreline Master Program Guidelines, Publication 03-06-036, (2003)
2. Washington State Department of Ecology, Evaluation of Probable Benefits and Costs: Amended Shoreline Master Program Guidelines, Publication 03-05-035, (2003)
3. Washington State Department of Ecology, Evaluation of Probable Benefits and Costs: Amended Shoreline Master Program Guidelines, Publication 00-06-043, (2000)
4. Washington State Department of Ecology, Proposed Shoreline Master Program Guidelines Final Environmental Impact Statement, Publication 00-06-020, (2000)
A copy of the statement may be obtained by contacting Tryg Hoff, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6865, fax (360) 407-6989, e-mail thof461@ecy.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Tryg Hoff, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6865, fax (360) 407-6989, e-mail thof461@ecy.wa.gov.
July 28, 2006
Polly Zehm
Deputy Director
OTS-9034.1
AMENDATORY SECTION(Amending Order 73-14, filed 8/27/73)
WAC 173-18-040
Streams and rivers.
The following
provisions of this chapter delimit((, by county,)) the streams
and rivers which constitute shorelines of the state as
follows:
(1) Streams which constitute shorelines.
(a) Western Washington. ((The following provisions
describe the)) Streams in Western Washington from the point at
which the stream reaches a mean annual flow of twenty cubic
feet per second down to the mouth of said stream or river:
Provided, that the stream falls at said point, within the
jurisdiction of chapter 90.58 RCW.
(b) Eastern Washington. ((The following provisions
describe the)) Streams in Eastern Washington from the point at
which the stream reaches a mean annual flow of twenty cubic
feet per second down to the mouth of said stream or river:
Provided, That the stream falls at said point, within the
jurisdiction of chapter 90.58 RCW.
(2) Rivers which constitute shorelines of statewide significance.
(a) Western Washington. ((The following provisions
describe the point on those rivers in Western Washington where
the mean annual flow reaches one thousand cubic feet per
second and lists said river in all counties below said point
through which said river passes with a mean annual flow in
excess of one thousand cubic feet per second:)) Any rivers
west of the crest of the Cascade range downstream of a point
where the mean annual flow is measured at one thousand cubic
feet per second or more. Provided, That the river falls at
said point within the jurisdiction of chapter 90.58 RCW.
(b) Eastern Washington. ((The following provisions
describe)) Either of the following points on ((those)) rivers
in Eastern Washington, whichever is farther upstream;
(i) The point at which the mean annual flow exceeds two
hundred cubic feet per second((,)); or
(ii) The lowest extremity of the first three hundred square miles of drainage area east of the crest of the Cascade Range; provided that either of said points which is utilized is within the jurisdiction of chapter 90.58 RCW.
(((iii) The following provisions additionally list said
river in all counties below said point through which said
river passes.))
(3) ((Streams or rivers outside the jurisdiction of
chapter 90.58 RCW. In those cases where the above described
points on streams or rivers fall in geographical areas outside
of the jurisdiction of chapter 90.58 RCW. The following
provisions list said streams or rivers in all counties
downstream from the boundaries of said geographical areas. In
such listing, if the body of water is a shoreline of statewide
significance below said geographical area, such will be
indicated in the description and by asterisk.
(4))) Until superceded as provided in WAC 173-18-044, rivers constituting shorelines of the state are listed in WAC 173-18-050 through 173-18-430. Other data related to these lists.
(a) Wherever a river of statewide significance falls within a county, it is followed by an asterisk.
(b) The following provisions set forth the name of the quadrangle maps where the stream or river is shown. The quadrangle in which the shoreline delimitation begins and the first quadrangle downstream from the county line is underlined. The quadrangle in which the shoreline of statewide significance begins is followed by an asterisk. The size, in minutes, of all quadrangle maps is designated.
(c) Where quadrangle maps are unavailable, photomaps have been used as indicated.
[Order 73-14, § 173-18-040, filed 8/27/73; Order DE 72-13, § 173-18-040, filed 6/30/72.]
[Statutory Authority: RCW 90.58.120 and 90.58.200. 80-08-052 (Order DE 80-20), § 173-18-044, filed 6/30/80.]
[Statutory Authority: RCW 90.58.120 and 90.58.200. 80-08-052 (Order DE 80-20), § 173-18-046, filed 6/30/80.]
OTS-9035.1
AMENDATORY SECTION(Amending Order DE 73-13, filed 8/27/73)
WAC 173-20-040
List of lakes coming under purview of
chapter 90.58 RCW until superceded.
Volumes I and II of the
book Lakes of Washington by Ernest E. Wolcott and updated
information from ((the United States Geological Survey))
various sources were used as reference material for ((this))
the listings in WAC 173-20-050 through 173-20-810. These
listings are in effect until superceded by an approved
shoreline master program as described in WAC 173-20-044.
This listing includes only those lakes coming under purview of chapter 90.58 RCW.
Use designations are taken directly from Lakes of Washington as follows:
R - Recreation-wildlife, general public use, beautification, fishing, etc.
D - Domestic-private use, farm pond, fire protection, stock, garden, etc.
PS - Public supply, municipal use, civic, industrial use, etc.
P - Power hydroelectric.
I - Irrigation.
Acreage given includes only water surface acres and not contiguous wetlands.
[Order DE 73-13, § 173-20-040, filed 8/27/73; Order DE 72-14, § 173-20-040, filed 6/30/72.]
[Statutory Authority: RCW 90.58.120 and 90.58.200. 80-08-053 (Order DE 80-21), § 173-20-044, filed 6/30/80.]
[Statutory Authority: RCW 90.58.120 and 90.58.200. 80-08-053 (Order DE 80-21), § 173-20-046, filed 6/30/80.]
| Location | Section | Name | Area (Acres) | Use | |
| (1) | T27N-R4E | 1-SW1/4 | Martha Lk. | 59.3 | R |
| (2) | T27N-R4E | 32-SW1/4 | Ballinger Lk. | 103.2 | R |
| (3) | T27N-R5E | 36-SE1/4 | Crystal Lk. (Res.) | 39.1 | R |
| (4) | T27N-R7E | 22-A/B | Fontal Lk. | 37.2 | R |
| (5) | T27N-R7E | 23-SW1/4 | Hannan Lk. | 48.4 | R |
| (6) | T27N-R8E | 21-B/C | Tomtit Lk. | 27.9 | R |
| (7) | T27N-R8E | 21-E/M | Dagger Lk. | 27.7 | R |
| (8) | T27N-R11E | 21-NE1/4 | Sunset Lk. | 38.4 | R |
| (9) | T28N-R4E | 34-S1/2 | Serene Lk. | 42.3 | R |
| (10) | T28N-R4E | 35-A/B | Stickney Lk. | 25.7 | R |
| (11) | T28N-R5E | 24-E1/4 | Hanson Slough | 35.0 | R |
| (12) | T28N-R5E | 30-H | Silver Lk. | 102.3 | R |
| (13) | (( |
||||
| T28N-R6E | 1-SE1/4 | Storm Lk. | 78.1 | R | |
| (( |
T28N-R6E | 2-A | Flowing Lk. | 134.8 | R |
| (( |
T28N-R6E | 2-C/D | Panther Lk. | 46.7 | R |
| (( |
T28N-R6E | 7-NW1/4 | Blackmans Lk. | 60.1 | R |
| (( |
T28N-R6E | 24-A | Chain Lk. | 22.8 | R |
| (( |
T28N-R7E | 12-J | Woods Lk. | 20.5 | R |
| (( |
T28N-R7E | 16-A | Cochran Lk. | 33.6 | R |
| (( |
T28N-R8E | 6-G | Chaplain Lk. (Res.) | 443.7 | PS |
| (( |
T28N-R8E | 22-G/H | Kellogg Lk. | 20.2 | R |
| (( |
T28N-R9E | 20-NE1/4 | Wallace Lk. | 55.3 | R |
| (( |
T28N-R10E | 5-G/H | Boulder Lk. | 21.7 | R |
| (( |
T28N-R11E | 1-W1/2 | Blanca Lk. | 179.0 | R |
| (( |
T29N-R7E | 15-NE1/4 | Purdy Creek Ponds | 20.0 | R |
| (( |
T29N-R7E | 27-N/P | Hughes Lk. | 20.2 | R |
| (( |
T29N-R7E | 28-E | Roesiger Lk. | 352.2 | R |
| (( |
T29N-R8E | 21-D | Echo Lk. | 24.6 | R |
| (( |
T29N-R9E | 9-M/N | East Boardman Lk. | 24.7 | R |
| (( |
T29N-R9E | 36-J/R | Greider Lks. Upper | 58.4 | R |
| (( |
T29N-R10E | 4 | Copper Lk. | 60.8 | R |
| (( |
T30N-R6E | 31-C/D | Cassidy Lk. | 124.6 | R |
| (( |
T30N-R6E | 36-E1/2 | Bosworth Lk. | 95.4 | R |
| (( |
T31N-R4E | 18-SE1/4 | Martha Lk. | 58.4 | R |
| (( |
T31N-R4E | 20-L/P | Howard Lk. | 27.1 | R |
| (( |
T31N-R4E | 23-L | Ki Lk. | 97.4 | R |
| (( |
T31N-R4E | 33-G | Goodwin Lk. | 546.8 | R |
| (( |
T31N-R4E | 33-P | Shoecraft Lk. | 136.8 | R |
| (( |
T31N-R4E | 34-H | Crabapple Lk. | 36.3 | R |
| (( |
T31N-R4E | 35-A/H | Loma Lk. | 21.1 | R |
| (( |
T32N-R4E | 26-K/L | Sunday Lk. | 38.7 | R |
| (( |
T32N-R5E | 26-SE1/4 | Armstrong Lk. | 30.7 | R |
| (( |
T32N-R5E | 27-F/G | Bryant Lk. | 20.2 | R |
| (( |
T32N-R6E | 26-C | Little Lk. | 23.4 | R |
| (( |
T32N-R7E | 19-H/J | Riley Lk. | 30.0 | R |
| (( |
T32N-R10E | 28 | Evangeline Lk. | 25.0 | |
[Statutory Authority: RCW 90.58.200. 98-09-098 (Order 97-40), § 173-20-640, filed 4/22/98, effective 5/23/98; Order DE 76-16, § 173-20-640, filed 5/3/76; Order DE 72-14, § 173-20-640, filed 6/30/72.]
OTS-9036.1
AMENDATORY SECTION(Amending Order 96-12, filed 2/5/97,
effective 3/8/97)
WAC 173-22-030
Definitions.
As used herein, the
following words have the following meanings:
(1) "Associated wetlands" means those wetlands which are in proximity to and either influence or are influenced by tidal waters or a lake or stream subject to the Shoreline Management Act;
(2) "Atypical situation" as used herein, refers to areas in which one or more parameters (vegetation, soil, and/or hydrology) have been sufficiently altered by recent human activities or natural events to preclude the presence of wetland indicators of the parameter. Recent refers to the period of time since legal jurisdiction of an applicable law or regulation took effect;
(3) "Duration (inundation/soil saturation)" means the length of time during which water stands at or above the soil surface (inundation), or during which the soil is saturated. As used herein, duration refers to a period during the growing season;
(4) "Flood plain" is synonymous with one hundred-year floodplain and means that land area susceptible to being inundated by stream derived waters with a one percent chance of being equaled or exceeded in any given year. The limit of this area shall be based upon flood ordinance regulation maps or a reasonable method which meets the objectives of the act;
(5) "Floodway" ((means those portions of the area of a
river valley lying streamward from the outer limits of a
watercourse upon which flood waters are carried during periods
of flooding that occur with reasonable regularity, although
not necessarily annually, said floodway being identified,
under normal condition, by changes in surface soil conditions
or changes in types or quality of vegetative ground cover
condition. The floodway shall not include those lands that
can reasonably be expected to be protected from flood waters
by flood control devices maintained by or maintained under
license from the federal government, the state, or a political
subdivision of the state. The limit of the floodway is that
which has been established in flood regulation ordinance maps
or by a reasonable method which meets the objectives of the
act)) has the meaning provided in RCW 90.58.030;
(6) "Growing season" means the portion of the year when soil temperatures at 19.7 inches below the soil surface are higher than biologic zero (5°C);
(7) "Hydrophytic vegetation" means the sum total of macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. When hydrophytic vegetation comprises a community where indicators of hydric soils and wetland hydrology also occur, the area has wetland vegetation;
(8) "Hydric soil" means soil that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part;
(9) "Lake" means a body of standing water in a depression of land or expanded part of a river, including reservoirs, of twenty acres or greater in total area. A lake is bounded by the ordinary high water mark or, where a stream enters a lake, the extension of the elevation of the lake's ordinary high water mark within the stream;
(10) "Long duration" means a period of inundation from a single event that ranges from seven days to one month.
(11) "Ordinary high water mark" on all lakes, streams, and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department. The following criteria clarify this mark on tidal waters, lakes, and streams:
(a) Tidal waters.
(i) In high energy environments where the action of waves or currents is sufficient to prevent vegetation establishment below mean higher high tide, the ordinary high water mark is coincident with the line of vegetation. Where there is no vegetative cover for less than one hundred feet parallel to the shoreline, the ordinary high water mark is the average tidal elevation of the adjacent lines of vegetation. Where the ordinary high water mark cannot be found, it is the elevation of mean higher high tide;
(ii) In low energy environments where the action of waves and currents is not sufficient to prevent vegetation establishment below mean higher high tide, the ordinary high water mark is coincident with the landward limit of salt tolerant vegetation. "Salt tolerant vegetation" means vegetation which is tolerant of interstitial soil salinities greater than or equal to 0.5 parts per thousand;
(b) Lakes. Where the ordinary high water mark cannot be found, it shall be the line of mean high water;
(c) Streams. Where the ordinary high water mark cannot be found, it shall be the line of mean high water. For braided streams, the ordinary high water mark is found on the banks forming the outer limits of the depression within which the braiding occurs;
(12) "Prevalent vegetation" means the plant community or communities that occur in an area during a given period. The prevalent vegetation is characterized by the dominant macrophytic species that comprise the plant community;
(13) "River delta" means those lands formed as an aggradational feature by stratified clay, silt, sand and gravel deposited at the mouths of streams where they enter a quieter body of water. The upstream extent of a river delta is that limit where it no longer forms distributary channels;
(14) "Shorelands" or "shoreland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology. Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom;
(15) A "stream" is a naturally occurring body of periodic or continuously flowing water where:
(a) The mean annual flow is greater than twenty cubic feet per second; and
(b) The water is contained within a channel. A channel is an open conduit either naturally or artificially created. This definition does not include artificially created irrigation, return flow, or stockwatering channels;
(16) "Tidal water" includes marine and estuarine waters bounded by the ordinary high water mark. Where a stream enters the tidal water, the tidal water is bounded by the extension of the elevation of the marine ordinary high water mark within the stream;
(17) "Typically adapted" is a term that refers to a species being normally or commonly suited to a given set of environmental conditions, due to some feature of its morphology, physiology, or reproduction;
(18) "Very long duration" means a period of inundation from a single event that is greater than one month.
(19) "Wetlands" or "wetland areas" means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands; and
(20) The definitions set forth in chapter 90.58 RCW shall also apply as used herein.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 97-04-076 (Order 96-12), § 173-22-030, filed 2/5/97, effective 3/8/97. Statutory Authority: Chapter 90.58 RCW. 86-12-011 (Order 86-06), § 173-22-030, filed 5/23/86. Statutory Authority: RCW 90.58.030 (2)(f), 90.58.120, and 90.58.200. 80-08-086 (Order DE 80-22), § 173-22-030, filed 7/2/80; Order DE 73-11, § 173-22-030, filed 7/20/73; Order DE 72-15, § 173-22-030, filed 6/30/72.]
(1) Tidal waters. The shoreland area shall include:
(a) Those lands which extend landward two hundred feet as measured on a horizontal plane from the ordinary high water mark; and
(b) Those wetlands which are in proximity to and either influence or are influenced by the tidal water. This influence includes but is not limited to one or more of the following: Periodic tidal inundation; hydraulic continuity; formation by tidally influenced geohydraulic processes; or a surface connection through a culvert or tide gate;
(2) Lakes. The shoreland area shall include:
(a) Those lands which extend landward two hundred feet as measured on a horizontal plane from the ordinary high water mark; and
(b) Those wetlands which are in proximity to and either influence or are influenced by the lake. This influence includes but is not limited to one or more of the following: Periodic inundation or hydraulic continuity;
(3) Streams. The shoreland area shall include the greater of:
(a) Those lands which extend landward two hundred feet as measured on a horizontal plane from the ordinary high water mark;
(b) Those floodplains which extend landward two hundred
feet as measured on a horizontal plane from the floodway:
Provided, That local government may, at its discretion,
include all or a larger portion of the one hundred-year
floodplain within the associated shorelands. Designation of
this shoreland area shall be in accordance with chapter
((173-19)) 173-26 WAC, the state master program. If the
applicable master program does not designate the shoreland
area for a stream, it shall be designated under the rules
which applied at the time of adoption by the department;
(c) Those wetlands which are in proximity to and either influence or are influenced by the stream. This influence includes but is not limited to one or more of the following: Periodic inundation; location within a floodplain; or hydraulic continuity; and
(d) Those lands within a river delta floodplain except for those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 97-04-076 (Order 96-12), § 173-22-040, filed 2/5/97, effective 3/8/97. Statutory Authority: Chapter 90.58 RCW. 86-12-011 (Order 86-06), § 173-22-040, filed 5/23/86. Statutory Authority: RCW 90.58.030, 90.58.120 and 90.58.200. 85-09-043 (Order DE 85-05), § 173-22-040, filed 4/15/85. Statutory Authority: RCW 90.58.030 (2)(f), 90.58.120, and 90.58.200. 80-08-086 (Order DE 80-22), § 173-22-040, filed 7/2/80; Order DE 76-30, § 173-22-040, filed 7/27/76; Order DE 73-11, § 173-22-040, filed 7/20/73; Order DE 72-15, § 173-22-040, filed 6/30/72.]
[Statutory Authority: Chapter 90.58 RCW. 86-12-011 (Order 86-06), § 173-22-050, filed 5/23/86. Statutory Authority: RCW 90.58.030 (2)(f), 90.58.120, and 90.58.200. 80-08-086 (Order DE 80-22), § 173-22-050, filed 7/2/80; Order DE 73-11, § 173-22-050, filed 7/20/73; Order DE 72-15, § 173-22-050, filed 6/30/72.]
[Statutory Authority: Chapter 90.58 RCW. 86-12-011 (Order 86-06), § 173-22-055, filed 5/23/86. Statutory Authority: RCW 90.58.030 (2)(f), 90.58.120, and 90.58.200. 80-08-086 (Order DE 80-22), § 173-22-055, filed 7/2/80; Order DE 73-11, § 173-22-055, filed 7/20/73.]
[Statutory Authority: Chapter 90.58 RCW. 86-12-011 (Order 86-06), § 173-22-060, filed 5/23/86. Statutory Authority: RCW 90.58.030, 90.58.120 and 90.58.200. 85-14-001 (Order 85-15), § 173-22-060, filed 6/20/85; 85-09-043 (Order DE 85-05), § 173-22-060, filed 4/15/85. Statutory Authority: RCW 90.58.120, 90.58.200 and 90.58.030 (2)(f). 81-13-034 (Order DE 81-18), § 173-22-060, filed 6/15/81; Order DE 72-15, § 173-22-060, filed 6/30/72.]
OTS-9037.1
AMENDATORY SECTION(Amending Order 95-17, filed 9/30/96,
effective 10/31/96)
WAC 173-27-040
Developments exempt from substantial
development permit requirement.
(1) Application and
interpretation of exemptions.
(a) Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemption from the substantial development permit process.
(b) An exemption from the substantial development permit process is not an exemption from compliance with the act or the local master program, nor from any other regulatory requirements. To be authorized, all uses and developments must be consistent with the policies and provisions of the applicable master program and the Shoreline Management Act. A development or use that is listed as a conditional use pursuant to the local master program or is an unlisted use, must obtain a conditional use permit even though the development or use does not require a substantial development permit. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of the master program, such development or use can only be authorized by approval of a variance.
(c) The burden of proof that a development or use is exempt from the permit process is on the applicant.
(d) If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project.
(e) Local government may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the act and the local master program.
(2) The following developments shall not require substantial development permits:
(a) Any development of which the total cost or fair
market value, whichever is higher, does not exceed ((two))
five thousand ((five hundred)) dollars, if such development
does not materially interfere with the normal public use of
the water or shorelines of the state. The dollar threshold
established in this subsection must be adjusted for inflation
by the office of financial management every five years,
beginning July 1, 2007, based upon changes in the consumer
price index during that time period. "Consumer price index"
means, for any calendar year, that year's annual average
consumer price index, Seattle, Washington area, for urban wage
earners and clerical workers, all items, compiled by the
Bureau of Labor and Statistics, United States Department of
Labor. The office of financial management must calculate the
new dollar threshold and transmit it to the office of the code
reviser for publication in the Washington State Register at
least one month before the new dollar threshold is to take
effect. For purposes of determining whether or not a permit
is required, the total cost or fair market value shall be
based on the value of development that is occurring on
shorelines of the state as defined in RCW 90.58.030 (2)(c). The total cost or fair market value of the development shall
include the fair market value of any donated, contributed or
found labor, equipment or materials;
(b) Normal maintenance or repair of existing structures or developments, including damage by accident, fire or elements. "Normal maintenance" includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. "Normal repair" means to restore a development to a state comparable to its original condition, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to shoreline resource or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment;
(c) Construction of the normal protective bulkhead common to single-family residences. A "normal protective" bulkhead includes those structural and nonstructural developments installed at or near, and parallel to, the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used as backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no further waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an ordinary high water mark has been established by the presence and action of water landward of the bulkhead then the replacement bulkhead must be located at or near the actual ordinary high water mark. Beach nourishment and bioengineered erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the project has been approved by the department of fish and wildlife.
(d) Emergency construction necessary to protect property from damage by the elements. An "emergency" is an unanticipated and imminent threat to public health, safety, or the environment which requires immediate action within a time too short to allow full compliance with this chapter. Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the administrator to be the appropriate means to address the emergency situation, upon abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, pursuant to chapter 90.58 RCW, these regulations, or the local master program, obtained. All emergency construction shall be consistent with the policies of chapter 90.58 RCW and the local master program. As a general matter, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency;
(e) Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelands, construction of a barn or similar agricultural structure, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels: Provided, That a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;
(f) Construction or modification((, by or under the
authority of the Coast Guard or a designated port management
authority,)) of navigational aids such as channel markers and
anchor buoys;
(g) Construction on shorelands by an owner, lessee or contract purchaser of a single-family residence for their own use or for the use of their family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to chapter 90.58 RCW. "Single-family residence" means a detached dwelling designed for and occupied by one family including those structures and developments within a contiguous ownership which are a normal appurtenance. An "appurtenance" is necessarily connected to the use and enjoyment of a single-family residence and is located landward of the ordinary high water mark and the perimeter of a wetland. On a statewide basis, normal appurtenances include a garage; deck; driveway; utilities; fences; installation of a septic tank and drainfield and grading which does not exceed two hundred fifty cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. Local circumstances may dictate additional interpretations of normal appurtenances which shall be set forth and regulated within the applicable master program. Construction authorized under this exemption shall be located landward of the ordinary high water mark;
(h) Construction of a dock, including a community dock,
designed for pleasure craft only, for the private
noncommercial use of the owner((s)), lessee, or contract
purchaser of ((a)) single-family and multiple-family
residences. A dock is a landing and moorage facility for
watercraft and does not include recreational decks, storage
facilities or other appurtenances. This exception applies if
either:
(i) In salt waters, the fair market value of the dock does not exceed two thousand five hundred dollars; or
(ii) In fresh waters the fair market value of the dock does not exceed ten thousand dollars, but if subsequent construction having a fair market value exceeding two thousand five hundred dollars occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this chapter.
For purposes of this section salt water shall include the tidally influenced marine and estuarine water areas of the state including the Pacific Ocean, Strait of Juan de Fuca, Strait of Georgia and Puget Sound and all bays and inlets associated with any of the above;
(i) Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water from the irrigation of lands;
(j) The marking of property lines or corners on state-owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;
(k) Operation and maintenance of any system of dikes,
ditches, drains, or other facilities existing on ((June 4))
September 8, 1975, which were created, developed or utilized
primarily as a part of an agricultural drainage or diking
system;
(l) Any project with a certification from the governor pursuant to chapter 80.50 RCW;
(m) Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if:
(i) The activity does not interfere with the normal public use of the surface waters;
(ii) The activity will have no significant adverse impact on the environment including but not limited to fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values;
(iii) The activity does not involve the installation of any structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity;
(iv) A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the local jurisdiction to ensure that the site is restored to preexisting conditions; and
(v) The activity is not subject to the permit requirements of RCW 90.58.550;
(n) The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the department of agriculture or the department of ecology jointly with other state agencies under chapter 43.21C RCW;
(o) Watershed restoration projects as defined herein. Local government shall review the projects for consistency with the shoreline master program in an expeditious manner and shall issue its decision along with any conditions within forty-five days of receiving all materials necessary to review the request for exemption from the applicant. No fee may be charged for accepting and processing requests for exemption for watershed restoration projects as used in this section.
(i) "Watershed restoration project" means a public or private project authorized by the sponsor of a watershed restoration plan that implements the plan or a part of the plan and consists of one or more of the following activities:
(A) A project that involves less than ten miles of streamreach, in which less than twenty-five cubic yards of sand, gravel, or soil is removed, imported, disturbed or discharged, and in which no existing vegetation is removed except as minimally necessary to facilitate additional plantings;
(B) A project for the restoration of an eroded or unstable stream bank that employs the principles of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water; or
(C) A project primarily designed to improve fish and wildlife habitat, remove or reduce impediments to migration of fish, or enhance the fishery resource available for use by all of the citizens of the state, provided that any structure, other than a bridge or culvert or instream habitat enhancement structure associated with the project, is less than two hundred square feet in floor area and is located above the ordinary high water mark of the stream.
(ii) "Watershed restoration plan" means a plan, developed or sponsored by the department of fish and wildlife, the department of ecology, the department of natural resources, the department of transportation, a federally recognized Indian tribe acting within and pursuant to its authority, a city, a county, or a conservation district that provides a general program and implementation measures or actions for the preservation, restoration, re-creation, or enhancement of the natural resources, character, and ecology of a stream, stream segment, drainage area, or watershed for which agency and public review has been conducted pursuant to chapter 43.21C RCW, the State Environmental Policy Act;
(p) A public or private project((, the primary purpose of
which is)) that is designed to improve fish or wildlife
habitat or fish passage, when all of the following apply:
(i) The project has been approved in writing by the
department of fish and wildlife ((as necessary for the
improvement of the habitat or passage and appropriately
designed and sited to accomplish the intended purpose));
(ii) The project has received hydraulic project approval
by the department of fish and wildlife pursuant to chapter
((75.20)) 70.55 RCW; and
(iii) The local government has determined that the project is substantially consistent with the local shoreline master program. The local government shall make such determination in a timely manner and provide it by letter to the project proponent.
(((3) Hazardous substance remedial actions. The
procedural requirements of chapter 90.58 RCW shall not apply
to a project for which a consent decree, order or agreed order
has been issued pursuant to chapter 70.105D RCW or to the
department of ecology when it conducts a remedial action under
chapter 70.105D RCW. The department shall, in consultation
with the appropriate local government, assure that such
projects comply with the substantive requirements of chapter 90.58 RCW, chapter 173-26 WAC and the local master program.))
Fish habitat enhancement projects that conform to the provisions of RCW 77.55.181 are determined to be consistent with local shoreline master programs, as follows:
(A) In order to receive the permit review and approval process created in this section, a fish habitat enhancement project must meet the criteria under (p)(iii)(A)(I) and (II) of this subsection:
(I) A fish habitat enhancement project must be a project to accomplish one or more of the following tasks:
• Elimination of human-made fish passage barriers, including culvert repair and replacement;
• Restoration of an eroded or unstable streambank employing the principle of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water; or
• Placement of woody debris or other instream structures that benefit naturally reproducing fish stocks.
The department of fish and wildlife shall develop size or scale threshold tests to determine if projects accomplishing any of these tasks should be evaluated under the process created in this section or under other project review and approval processes. A project proposal shall not be reviewed under the process created in this section if the department determines that the scale of the project raises concerns regarding public health and safety; and
(II) A fish habitat enhancement project must be approved in one of the following ways:
• By the department of fish and wildlife pursuant to chapter 77.95 or 77.100 RCW;
• By the sponsor of a watershed restoration plan as provided in chapter 89.08 RCW;
• By the department as a department of fish and wildlife-sponsored fish habitat enhancement or restoration project;
• Through the review and approval process for the jobs for the environment program;
• Through the review and approval process for conservation district-sponsored projects, where the project complies with design standards established by the conservation commission through interagency agreement with the United States Fish and Wildlife Service and the natural resource conservation service;
• Through a formal grant program established by the legislature or the department of fish and wildlife for fish habitat enhancement or restoration; and
• Through other formal review and approval processes established by the legislature.
(B) Fish habitat enhancement projects meeting the criteria of (p)(iii)(A) of this subsection are expected to result in beneficial impacts to the environment. Decisions pertaining to fish habitat enhancement projects meeting the criteria of (p)(iii)(A) of this subsection and being reviewed and approved according to the provisions of this section are not subject to the requirements of RCW 43.21C.030 (2)(c).
(C)(I) A hydraulic project approval permit is required for projects that meet the criteria of (p)(iii)(A) of this subsection and are being reviewed and approved under this section. An applicant shall use a joint aquatic resource permit application form developed by the office of regulatory assistance to apply for approval under this chapter. On the same day, the applicant shall provide copies of the completed application form to the department of fish and wildlife and to each appropriate local government. Local governments shall accept the application as notice of the proposed project. The department of fish and wildlife shall provide a fifteen-day comment period during which it will receive comments regarding environmental impacts. Within forty-five days, the department shall either issue a permit, with or without conditions, deny approval, or make a determination that the review and approval process created by this section is not appropriate for the proposed project. The department shall base this determination on identification during the comment period of adverse impacts that cannot be mitigated by the conditioning of a permit. If the department determines that the review and approval process created by this section is not appropriate for the proposed project, the department shall notify the applicant and the appropriate local governments of its determination. The applicant may reapply for approval of the project under other review and approval processes.
(II) Any person aggrieved by the approval, denial, conditioning, or modification of a permit under this section may formally appeal the decision to the hydraulic appeals board pursuant to the provisions of this chapter.
(D) No local government may require permits or charge fees for fish habitat enhancement projects that meet the criteria of (p)(iii)(A) of this subsection and that are reviewed and approved according to the provisions of this section.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 96-20-075 (Order 95-17), § 173-27-040, filed 9/30/96, effective 10/31/96.]
(1) Pursuant to RCW 90.58.390, certain secure community transition facilities are not subject to the Shoreline Management Act. An emergency has been caused by the need to expeditiously site facilities to house sexually violent predators who have been committed under chapter 71.09 RCW. To meet this emergency, secure community transition facilities sited pursuant to the preemption provisions of RCW 71.09.342 and secure facilities sited pursuant to the preemption provisions of RCW 71.09.250 are not subject to the provisions of this chapter.
This section expires June 30, 2009.
(2) Pursuant to RCW 90.58.045 regarding environmental excellence program agreements, notwithstanding any other provision of law, any legal requirement under the Shoreline Management Act, including any standard, limitation, rule, or order is superseded and replaced in accordance with the terms and provisions of an environmental excellence program agreement, entered into under chapter 43.21K RCW.
(3) Pursuant to RCW 90.58.355 regarding hazardous substance remedial actions, the procedural requirements of the Shoreline Management Act shall not apply to any person conducting a remedial action at a facility pursuant to a consent decree, order, or agreed order issued pursuant to chapter 70.105D RCW, or to the department of ecology when it conducts a remedial action under chapter 70.105D RCW. The department of ecology shall ensure compliance with the substantive requirements of chapter 90.58 RCW, chapter 173-26 WAC and the local master program through the consent decree, order, or agreed order issued pursuant to chapter 70.105D RCW, or during the department-conducted remedial action, through the procedures developed by the department pursuant to RCW 70.105D.090.
(4) The holder of a certification from the governor pursuant to chapter 80.50 RCW shall not be required to obtain a permit under chapter 90.58 RCW.
[]
(1) Within the coastal counties.)) (1) Direct federal
agency actions and projects shall be consistent to the maximum
extent practicable with the approved Washington state coastal
zone management program subject to certain limitations set
forth in the Federal Coastal Zone Management Act, 16 U.S.C.
1451 et seq. (CZMA) and regulations adopted pursuant thereto. ((Other applicable federal law governing the federal agency
actions may determine whether the permit system of chapter 90.58 RCW is applicable.))
The Shoreline Management Act is incorporated into the
Washington state coastal zone management plan and, thereby,
those direct federal actions occurring on lands subject to the
act must be consistent to the maximum practicable extent with
the act, regulations adopted pursuant to the act and with the
local master program. ((Local government is in the best
position to determine the appropriate procedure for review of
federal development activities at the local level while the
state must take action on federal consistency determinations
submitted to it.
(a) When the department receives a consistency determination for a development proposed by the federal government on land subject to the act, it shall request that local government review the proposal and respond in writing that the local government:
(i) Cannot make a determination of the consistency of the project with the master program without reviewing the project in the regular permit process; or
(ii) Has reviewed the project for consistency with the local master program without using the permit system. Local government may recommend that the project be approved, approved only under certain specified conditions or denied.
(iii) Defers review of the project to the state.
(b) Upon receipt of a response from local government that a permit is required to make a determination, the department shall inform the requesting agency of the local government finding and shall indicate that concurrence with the consistency determination cannot be granted until a permit is issued. If the local government chooses to review and make a recommendation without using the permit system it shall so notify the department and submit its recommendation to the department within thirty days unless a longer period of time is agreed to by the federal agency and the department. If no response is received from local government within thirty days they shall be deemed to have deferred review of the project.
(c) Nothing in this section shall be deemed to preclude independent review of the project by the state pursuant to any appropriate authority consistent with the approved coastal zone management plan.
(d) The coastal counties, as established in Washington's approved coastal zone management plan, consist of the following counties: Whatcom, Skagit, San Juan, Island, Snohomish, King, Pierce, Thurston, Mason, Kitsap, Jefferson, Clallam, Grays Harbor, Pacific and Wahkiakum.
(2) Outside of the coastal counties.
(a) Direct federal agency actions that are reasonably likely to affect any coastal use or resource shall be consistent with the approved coastal zone management plan to the maximum extent practicable subject to limitations set forth in the Federal Coastal Zone Management Act, 16 U.S.C. 1451 et seq.(CZMA) and regulations adopted pursuant thereto. Other applicable federal law governing the federal agency actions may determine whether the permit system of chapter 90.58 RCW is applicable.
(b) Except as provided in (a) of this subsection, federal agencies shall not be required to obtain permits for developments undertaken by the federal government on lands owned in fee by the federal government or on easements obtained by the federal government for a specified purpose where the proposed development is consistent with the specified purpose, unless under either circumstance the federal government grants or reserves to the state or local government substantial jurisdiction over activities on those lands.
(c) Except as provided in (a) of this subsection, the permit system shall apply to developments undertaken on lands not federally owned but under lease, license, or other similar federal property rights short of fee ownership, to the federal government.
(3))) The process for CZMA federal consistency decision making is described in Washington's federally approved CZM program document (Ecology Publication 00-06-029).
(2) The policies and provisions of chapter 90.58 RCW, including the permit system, shall apply statewide to all nonfederal developments and uses undertaken on federal lands and on lands subject to nonfederal ownership, lease or easement, even though such lands may fall within the external boundaries of a federal ownership.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 96-20-075 (Order 95-17), § 173-27-060, filed 9/30/96, effective 10/31/96.]
(a) When the activity was unlawful prior to the effective date of the act.
(b) When there has been an unreasonable period of dormancy in the project between its inception and the effective date of the act.
(c) When the development is not completed within two years after the effective date of the act.
(d) When substantial development occurred prior to the effective date of the act on a shoreline and continued on to a different lake, river or tributary after the effective date, a permit shall be required for the development undertaken after the effective date.
(e) Substantial development undertaken prior to the effective date of the act shall not continue without a permit into other phases that were not part of the plan being followed at the time construction commenced.
(2) The effective date of the act is determined by one of the following procedures:
(a) When a change in the area subject to the jurisdiction of the act occurs as a result of a determination of jurisdiction by the department based on the provisions of RCW 90.58.030 (2)(d) or (e), the effective date of the act shall be the date the department provides written notice of the change to the local government(s) in which the affected area is located.
(b) When a change in the area subject to the jurisdiction of the act occurs as a result of an updated shoreline master program that supersedes the jurisdiction lists in chapter 173-18, 173-20 and 173-22 WAC, the effective date of the act shall be the date the department approves the updated master program.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 96-20-075 (Order 95-17), § 173-27-070, filed 9/30/96, effective 10/31/96.]
(2) ((Where neither local government nor the department
include specific provisions establishing time limits on a
permit as a part of action on the permit, the following time
limits shall apply:
(a))) Construction activities shall be commenced or,
where no construction ((is)) activities are involved, the use
or activity shall be commenced within two years of the
effective date of a ((shoreline)) substantial development
permit. ((Provided, that)) However, local government may
authorize a single extension for a period not to exceed one
year based on reasonable factors, if a request for extension
has been filed before the expiration date and notice of the
proposed extension is given to parties of record on the
substantial development permit and to the department.
(((b))) (3) Authorization to conduct development
activities shall terminate five years after the effective date
of a ((shoreline)) substantial development permit. ((Provided, that)) However, local government may authorize a
single extension for a period not to exceed one year based on
reasonable factors, if a request for extension has been filed
before the expiration date and notice of the proposed
extension is given to parties of record and to the department.
(((3) The effective date of a shoreline permit shall be
the date of the last action required on the shoreline permit
and all other government permits and approvals that authorize
the development to proceed, including all administrative and
legal actions on any such permit or approval. It is the
responsibility of the applicant to inform the local government
of the pendency of other permit applications filed with
agencies other than the local government and of any related
administrative and legal actions on any permit or approval. If no notice of the pendency of other permits or approvals is
given to the local government prior to the date established by
the shoreline permit or the provisions of this section, the
expiration of a permit shall be based on the shoreline permit.
(4) When permit approval is based on conditions, such conditions shall be satisfied prior to occupancy or use of a structure or prior to commencement of a nonstructural activity: Provided, That an alternative compliance limit may be specified in the permit.)) (4) The effective date of a substantial development permit shall be the date of filing as provided in RCW 90.58.140(6). The permit time periods in subsections (2) and (3) of this section do not include the time during which a use or activity was not actually pursued due to the pendency of administrative appeals or legal actions or due to the need to obtain any other government permits and approvals for the development that authorize the development to proceed, including all reasonably related administrative or legal actions on any such permits or approvals.
(5) Revisions to permits under WAC 173-27-100 may be
authorized after original permit authorization has expired
((under subsection (2) of this section)): Provided, That this
procedure shall not be used to extend the original permit time
requirements or to authorize substantial development after the
time limits of the original permit.
(6) Local government shall notify the department in
writing of any change to the effective date of a permit, as
authorized by this section, with an explanation of the basis
for approval of the change. Any change to the time limits of
a permit other than those authorized by ((this section)) RCW 90.58.143 as amended shall require a new permit application.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 96-20-075 (Order 95-17), § 173-27-090, filed 9/30/96, effective 10/31/96.]
When an applicant seeks to revise a permit, local government shall request from the applicant detailed plans and text describing the proposed changes.
(1) If local government determines that the proposed changes are within the scope and intent of the original permit, and are consistent with the applicable master program and the act, local government may approve a revision.
(2) "Within the scope and intent of the original permit" means all of the following:
(a) No additional over water construction is involved except that pier, dock, or float construction may be increased by five hundred square feet or ten percent from the provisions of the original permit, whichever is less;
(b) Ground area coverage and height may be increased a maximum of ten percent from the provisions of the original permit;
(c) The revised permit does not authorize development to exceed height, lot coverage, setback, or any other requirements of the applicable master program except as authorized under a variance granted as the original permit or a part thereof;
(d) Additional or revised landscaping is consistent with any conditions attached to the original permit and with the applicable master program;
(e) The use authorized pursuant to the original permit is not changed; and
(f) No adverse environmental impact will be caused by the project revision.
(3) Revisions to permits may be authorized after original
permit authorization has expired under ((WAC 173-27-080(2)))
RCW 90.58.143. The purpose of such revisions shall be limited
to authorization of changes which are consistent with this
section and which would not require a permit for the
development or change proposed under the terms of chapter 90.58 RCW, this regulation and the local master program. If
the proposed change constitutes substantial development then a
new permit is required. Provided, this subsection shall not
be used to extend the time requirements or to authorize
substantial development beyond the time limits of the original
permit.
(4) If the sum of the revision and any previously approved revisions under former WAC 173-14-064 or this section violate the provisions in subsection (2) of this section, local government shall require that the applicant apply for a new permit.
(5) The revision approval, including the revised site plans and text consistent with the provisions of WAC 173-27-180 as necessary to clearly indicate the authorized changes, and the final ruling on consistency with this section shall be filed with the department. In addition, local government shall notify parties of record of their action.
(6) If the revision to the original permit involves a conditional use or variance, local government shall submit the revision to the department for the department's approval, approval with conditions, or denial, and shall indicate that the revision is being submitted under the requirements of this subsection. The department shall render and transmit to local government and the applicant its final decision within fifteen days of the date of the department's receipt of the submittal from local government. Local government shall notify parties of record of the department's final decision.
(7) The revised permit is effective immediately upon final decision by local government or, when appropriate under subsection (6) of this section, upon final action by the department.
(8) Appeals shall be in accordance with RCW 90.58.180 and shall be filed within twenty-one days from the date of receipt of the local government's action by the department or, when appropriate under subsection (6) of this section, the date the department's final decision is transmitted to local government and the applicant. Appeals shall be based only upon contentions of noncompliance with the provisions of subsection (2) of this section. Construction undertaken pursuant to that portion of a revised permit not authorized under the original permit is at the applicant's own risk until the expiration of the appeals deadline. If an appeal is successful in proving that a revision is not within the scope and intent of the original permit, the decision shall have no bearing on the original permit.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 96-20-075 (Order 95-17), § 173-27-100, filed 9/30/96, effective 10/31/96.]
(2) When a substantial development permit and a conditional use or variance permit are required for a development, the submittal on the permits shall be made concurrently.
(3) A complete submittal shall consist of the following documents and information:
(a) A copy of the complete application pursuant to WAC 173-27-180;
(b) Findings and conclusions that establish the basis for the decision including but not limited to identification of shoreline environment designation, applicable master program policies and regulations and the consistency of the project with appropriate review criteria for the type of permit(s) as established in WAC 173-27-140 through 173-27-170;
(c) The final decision of the local government;
(d) The permit data sheet required by WAC 173-27-190; and
(e) Where applicable, local government shall also file the applicable documents required by chapter 43.21C RCW, the State Environmental Policy Act, or in lieu thereof, a statement summarizing the actions and dates of such actions taken under chapter 43.21C RCW.
(4) When the project has been modified in the course of the local review process, plans or text shall be provided to the department that clearly indicate the final approved plan.
(5) Submittal of substantial development permits,
conditional use permits, variances, rescissions and revisions
is complete when all of the documents required pursuant to
subsections (3) and (4) of this section have been received by
the department. If the department determines that the
submittal does not contain all of the documents and
information required by this section, the department shall
identify the deficiencies and so notify local government and
the applicant in writing. ((The)) Ecology will not act on
conditional use permit or variance submittal ((and permit are
void unless and)) until the material requested in writing is
submitted to the department.
(6) "Date of filing" of a local government final decision
involving approval or denial of a substantial development
permit((, or involving a denial of a variance or conditional
use permit,)) is the date of actual receipt by the department
of a ((complete submittal by the department)) local
government's final decision on the permit.
(7) "Date of filing" ((of a permit for a conditional use
or variance approved by local government, and such permits
which also involve concurrent submittal by local government of
a substantial development)) involving approval or denial of a
variance or conditional use permit, is the date of transmittal
of the department's final decision on the variance or
conditional use permit to local government and the applicant.
(8) The department shall provide a written notice to the local government and the applicant of the "date of filing."
(9) Any decision on an application for a permit under the authority of this section, whether it is an approval or a denial, shall, concurrently with the transmittal of the ruling to the applicant, be filed with the department and the attorney general.
(10) When a permit has been appealed pursuant to RCW 90.58.180, upon conclusion of all review proceedings, a copy
of the final order shall be provided ((to)) by the local
government ((and)) to the department. When the project has
been modified in the course of the review proceeding, plans or
text shall be provided to the local government, consistent
with the provisions of WAC 173-27-180, that clearly indicate
the final approved plan and the local government shall reissue
the permit accordingly and submit a copy of the reissued
permit and supporting documents consistent with subsection (3)
of this section to the department for completion of the file
on the permit. The purpose of this provision is to assure
that the local and department files on the permit are complete
and accurate and not to provide a new opportunity for appeal
of the permit.
[Statutory Authority: RCW 90.58.140(3) and [90.58].200. 96-20-075 (Order 95-17), § 173-27-130, filed 9/30/96, effective 10/31/96.]