Original Notice.

Preproposal statement of inquiry was filed as WSR 95-22-068.

Title of Rule: Chapter 173-26 WAC, State master program approval/amendment procedures.

Purpose: To update and replace chapter 173-16 WAC, Shoreline Management Act guidelines for development of master programs; to implement regulatory reform measures integrating shorelines, growth management and related statutes; to create minimum requirements for local shoreline master programs which regulate shoreline development; to protect and restore fish and wildlife habitat, including salmon, within shorelines of the state.

Statutory Authority for Adoption: RCW 90.58.060, 90.58.200.

Statute Being Implemented: Chapter 90.58 RCW, Shoreline Management Act of 1971.

Summary: The proposed rule creates updated requirements for regulation of uses and activities conducted in shoreline areas throughout the state, implementing the Shoreline Management Act. The rule also provides criteria for local government and the department in developing and amending local shoreline master program policies and regulations.

Reasons Supporting Proposal: The shoreline guidelines have never been comprehensively updated since originally adopted in 1972. The proposed changes recognize new advancements in science and shoreline management practice affecting human shoreline uses, activities and fish and wildlife habitat. The changes will eliminate burdensome and outdated regulations, clarify state interests in shorelines and incorporate more efficient and effective regulatory reform measures in the guidelines. The legislature, with passage of ESHB 1724 in 1995, required ecology to review and update the guidelines.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Peter Skowlund, Lacey, Washington, (360) 407-6522.

Name of Proponent: Department of Ecology, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Update of the shoreline master program guidelines is required by the Shoreline Management Act. The guidelines are being updated to recognize changes in shoreline management law, science and practice. Update of the guidelines will require local governments to revise as necessary their local shoreline master programs to comply with new standards for public and private construction and location of structures and activities in shoreline areas, dredging, drilling, dumping, filling, removal of minerals, removal/restoration of vegetation, bulkheading and related shoreline stabilization devices, driving of pilings, placing of obstructions or any project which interferes with the normal public use of surface waters of the state. The guidelines apply to water areas, associated wetlands and adjacent uplands subject to the Shoreline Management Act.

Proposal Changes the Following Existing Rules: Amends chapter 173-26 WAC and repeals chapter 173-16 WAC in its entirety.

No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.025(3) provides, "This chapter does not apply to the adoption of a rule described in RCW 34.05.310(4)." One of the categories of rules referenced by the above is "Rules relating only to internal governmental operations that are not subject to violation by a nongovernment party."

In this case, the regulated community consists of local governments required to prepare and implement shoreline master programs by the Shoreline Management Act. It is clear that this process will affect private businesses and individuals, but the nature of those impacts will depend on the specific choices made by each jurisdiction as it complies with these guidelines. Further, that process will involve significant public involvement at the local level, during which these concerns can be raised and addressed.

RCW 34.05.328 applies to this rule adoption. These rules are significant under RCW 34.05.328 because they adopt new or make significant amendments to a policy or regulatory program. The department has conducted the additional analysis required under RCW 34.05.328.

Hearing Location: Ellensburg, on Wednesday, May 19, 1999, at the Hal Holmes Community Center, 201 North Ruby, open house 5:30 p.m., public hearing 7:00 p.m.

In Spokane, on Thursday, May 20, 1999, at the Public Health Center, West 1101 College, Room 140, open house 5:30 p.m., public hearing 7:00 p.m.

In Olympia/Lacey, on Tuesday, May 25, 1999, at the Ecology Headquarters Auditorium, 300 Desmond Drive, open house 6:00 p.m., public hearing 7:30 p.m.

In Seattle, on Wednesday, May 26, 1999, at the Mountaineers Building, 300 Third Avenue West, Tahoma Room 2, open house 5:30 p.m., public hearing 7:00 p.m.

Assistance for Persons with Disabilities: Contact Tim Gates by May 12, 1999, TDD (360) 407-6006, or (360) 407-7256, P.O. Box 47600.

Submit Written Comments to: Amy Johnson, Department of Ecology, Shorelands and Environmental Assistance Program, P.O. Box 47600, Olympia, WA 98504-7600, e-mail ajoh461@ecy.wa.gov, fax (360) 407-6902, by June 21, 1999.

Date of Intended Adoption: August 4, 1999.

March 30, 1999

Daniel J. Silver

Deputy Director

OTS-2886.4

As used herein, the following words and phrases shall have the following meanings:

(1) "Adaptive management" means the modification of management practices and activities, including policies, regulations, physical improvements, and supporting programs to address changing conditions and new knowledge regarding the issues and objectives in question. A key provision of adaptive management is the willingness to change adaptively in response to new understanding or information. As applied to environmental protection, the concept of adaptive management seeks to reduce the risk of destruction of natural shoreline functions and values through an ongoing effort to correct trends adversely affecting the natural environment.

In terms of shoreline management practices, adaptive management involves the monitoring of shoreline conditions and the revision of regulatory and physical improvement measures to more fully achieve the objectives of RCW 90.58.020.

(2) "Adoption by rule" means an official action by the department to make a local government shoreline master program effective through rule consistent with the requirements of the Administrative Procedure Act, chapter 34.05 RCW, thereby incorporating the adopted shoreline master program or amendment into the state master program;

(((2))) (3) "Amendment" means a revision, update, addition, deletion, and/or reenactment to an existing shoreline master program;

(((3))) (4) "Approval" means an official action by a local government legislative body agreeing to submit a proposed shoreline master program or amendments to the department for review and official action pursuant to this chapter; or an official action by the department to make a local government shoreline master program effective, thereby incorporating the approved shoreline master program or amendment into the state master program;

(((4))) (5) "Bank full width" means the width of a river or stream channel at bank full stage. "Bank full stage" occurs when the water level reaches the level of the flood plain and corresponds to the river height at which channel formation and migration are most active. Bank full width is determined by a hydrologic analysis. Where such analysis has not been done, bank full width shall be measured at the top of the bank nearest the stream or river channel that can support mature tree growth.

(6) "Best available science" means scientific information or scientific methods that:

• Must be the product of a valid scientific process. A valid scientific process contains the following characteristics:

• Peer review;

• Clearly stated and replicable methodology;

• Logical conclusions and reasonable inferences;

• Statistical analysis;

• Context is established and appropriately framed; and

• References to credible and pertinent existing information.

• Must be based on some or all of the following valid scientific sources:

• Research used to test a specific hypothesis;

• Monitoring that collects data over time to determine trends or evaluate a management program;

• Inventories that collect data from entire populations or ecosystems or segments of populations or ecosystems;

• Surveys that collect data from a statistical sample of a population or ecosystem;

• Assessments of site-specific information by a qualified scientific expert;

• Syntheses or comprehensive review and presentation of pertinent literature and other relevant knowledge by a qualified scientific expert; or

• Expert opinion or statement of a qualified scientific discipline.

• A qualified scientific expert is determined by professional credentials and/or certification, advanced degrees earned in the pertinent discipline, years of experience in the pertinent scientific discipline, and authorship in peer-reviewed journals or other professional literature.

• Anecdotal information, nonexpert opinion and hearsay are not considered best available science.

Best available science is used to develop management recommendations by qualified scientific experts. The management recommendations are then applied to local decision making processes.

For the purposes of this chapter, best available science shall mean conformance to RCW 90.58.100(1) and 36.70A.172 in addition to the characteristics listed above.

(7) "Channel migration zone" means the area of a river corridor where the active channel is prone to lateral movement, usually evidenced by abandoned channels, recent sediment, topographic changes, and vegetation character. The channel migration zone generally consists of the area that a stream has occupied or could be expected to occupy within the time it would take the trees to reach their site potential tree height.

(8) "Department" means the state department of ecology;

(((5))) (9) "Developed shorelines" means those shoreline areas that are characterized by existing uses or permanent structures located within shoreline jurisdiction.

(10) "Development regulations" means the controls placed on development or land use activities by a county or city, including, but not limited to, zoning ordinances, critical areas ordinances, all portions of a shoreline master program other than goals and policies approved or adopted under chapter 90.58 RCW, official controls, planned unit development ordinances, subdivision ordinances, and binding site plan ordinances together with any amendments thereto;

(((6))) (11) "Document of record" means the most current shoreline master program officially approved or adopted by rule by the department for a given local government jurisdiction, including any changes resulting from appeals filed pursuant to RCW 90.58.190;

(((7))) (12) "Ecological functions," or "natural shoreline functions" means those natural physical and biological processes which contribute to the shoreline ecology, including, but not limited to:

• Geomorphic processes;

• Hydrographic response and flooding;

• Sediment transport and deposition;

• Erosion and bank stability;

• Biological production;

• Litter and woody debris production;

• Sediment removal and filtration;

• Microclimate and temperature regulation;

• Fish and wildlife habitat and refuge;

• Vegetation growth; and

• Littoral drift.

(13) "Ecologically altered shorelines" means those shorelines that have had their vegetation or shoreline configuration substantially changed in a manner that significantly modifies or reduces the natural shoreline functions.

(14) "Ecologically intact shorelines" means those shoreline areas that retain the majority of their natural shoreline functions and values, as evidenced by vegetation and shoreline configuration. Generally, but not necessarily, ecologically intact shorelines are free of structural shoreline modifications, structures, and intensive human activities. In unmanaged forested areas, they generally include native vegetation with a diversity of species, multiple canopy layers, and large woody debris available for recruitment.

Recognizing that there is a continuum of ecological conditions ranging from near natural conditions to totally degraded and contaminated sites, this definition is intended to delineate those shoreline areas that provide valuable functions for the larger shoreline ecosystem which would be lost by significant human development. Whether or not a shoreline is ecologically intact is determined on a case-by-case basis using best available science.

The term "ecologically intact shorelines" applies all shoreline areas meeting the criteria ranging from larger reaches may include several properties to small areas located within a single property. For example, in establishing boundaries for "natural" environment designations as called for in section WAC 173-26-090(6), the term "ecologically intact" may apply to continuous, multiparcel sections of shorelines. In applying shoreline stabilization standards to an individual property, the term may apply to a portion of the property.

(15) "Feasible" means, for the purpose of this chapter, that an action meets all of the following conditions:

(a) It can be accomplished with technologies and methods that have been used in the past or if studies or tests have demonstrated that such technologies are likely to achieve the intended results;

(b) It provides a reasonable likelihood of achieving its intended purpose; and

(c) It does not preclude achieving the project's primary intended use.

In cases where these guidelines require certain actions unless they are infeasible, the burden of proving infeasibility is placed upon the applicant.

In determining an action's infeasibility, the reviewing agency may weigh the action's relative public costs and public benefits, considered in the short and long term time frames.

(16) "Geotechnical report" or "geotechnical analysis" means a scientific study or evaluation conducted by a qualified expert that includes a description of the site hydrology and geology, the affected land form and its susceptibility to mass wasting, conclusions and recommendations regarding the effect of the proposed development on geologic conditions, the adequacy of the site to be developed, the impacts of the proposed development, alternative approaches to the proposed development, and measures to mitigate potential site specific and cumulative impacts of the proposed development including the potential adverse impacts to adjacent and downstream material resource. Geotechnical reports shall conform to accepted technical standards and must be prepared by qualified engineers or geologists who are knowledgeable about the regional and local geology.

(17) "Guidelines" means those standards adopted by the department to implement the policy of chapter 90.58 RCW for regulation of use of the shorelines of the state prior to adoption of master programs.  Such standards shall also provide criteria for local governments and the department in developing and amending master programs;

(((8))) (18) "In-stream structure" means a dam or other structure for the impoundment, diversion, or use of water for hydroelectric generation and transmission, flood control, irrigation, water supply, recreational or fisheries enhancement.

(19) "Local government" means any county, incorporated city or town which contains within its boundaries shorelines of the state subject to chapter 90.58 RCW;

(((9))) (20) "Mitigation" or "mitigation sequencing" means the process of avoiding, reducing, or compensating for the environmental impact(s) of a proposal, including the following listed in the order of sequence priority. Measure (a) shall be applied first and subsequent measures applied only after higher priority measures are demonstrated to be not feasible or applicable.

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to avoid or reduce impacts;

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(e) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and

(f) Monitoring the impact and the compensation projects and taking appropriate corrective measures.

(21) "Nonpoint pollution" means pollution not originating from a specific point such as a wastewater outfall.

(22) "Nonwater-oriented uses" means those uses that are not water-dependent, water-related, or water-enjoyment.

(23) "Priority habitat" means a habitat type with unique or significant value to one or more species. An area classified and mapped as priority habitat must have one or more of the following attributes:

• Comparatively high fish and wildlife density;

• Comparatively high fish and wildlife species diversity;

• Important fish and wildlife breeding habitat;

• Important fish and wildlife seasonal ranges;

• Important fish and wildlife movement corridors;

• Limited availability;

• High vulnerability to habitat alteration; or

• Unique or dependent species.

A priority habitat may be described by a unique vegetation type or by a dominant plant species that is of primary importance to fish and wildlife (such as, oak woodlands, eelgrass meadows). A priority habitat may also be described by a successional stage (such as, old growth and mature forests). Alternatively, a priority habitat may consist of a specific habitat element (such as, consolidated marine/estuarine shorelines, talus slopes, caves, snags) of key value to fish and wildlife. A priority habitat may contain priority and/or nonpriority fish and wildlife.

(24) "Priority species" means fish and wildlife species requiring protective measures and/or management guidelines to ensure their perpetuation. Priority species are those that meet any of the criteria listed below.

(a) Criterion 1. State-listed or state candidate species. State-listed species are those native fish and wildlife species legally designated as endangered (WAC 232-12-014), threatened (WAC 232-12-011), or sensitive (WAC 232-12-011). State candidate species are those fish and wildlife species that will be reviewed by the department of fish and wildlife (POL-M-6001) for possible listing as endangered, threatened, or sensitive according to the process and criteria defined in WAC 232-12-297. Federal candidate species are evaluated individually to determine their status in Washington and whether inclusion as a priority species is justified.

(b) Criterion 2. Vulnerable aggregations. Vulnerable aggregations include those species or groups of animals susceptible to significant population declines, within a specific area or state-wide, by virtue of their inclination to congregate. Examples include heron rookeries, seabird concentrations, marine mammal haulouts, shellfish beds, and fish spawning and rearing areas.

(c) Criterion 3. Species of recreational, commercial, and/or tribal importance. Native and nonnative fish, shellfish, and wildlife species of recreational or commercial importance and recognized species used for tribal ceremonial and subsistence purposes that are vulnerable to habitat loss or degradation.

(d) Criterion 4. Species listed under the Endangered Species Act as either threatened or endangered.

(25) "Provisions" means policies, regulations, standards, guideline criteria or designations.

(26) "Rehabilitation" or "ecological rehabilitation" means the significant upgrading of ecological shoreline functions and values such as revegetation, removal of intrusive shoreline structures and removal or treatment of toxic materials.

(27) "Shoreline areas" and "shoreline jurisdiction" means all "shorelines of the state" and "shorelands" as defined in RCW 90.58.030.

(28) "Shoreline master program" or "master program" means the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020;

As provided in RCW 36.70A.480, the goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW shall be considered an element of the county or city's comprehensive plan.  All other portions of the shoreline master program for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations; and

(((10))) (29) "Shoreline modification activities" means those actions that modify the physical configuration or qualities of the shoreline area, usually through the construction of a physical element such as a dike, breakwater, dredged basin, landfill, or bulkhead. They can include other actions, such as clearing, grading, or application of chemicals.

(30) "Shoreline property" means an individual property wholly or partially within shoreline jurisdiction.

(31) "Significant vegetation removal" means the removal of trees, shrubs, and/or ground cover by clearing, grading, cutting, chemical means, or other activity that threatens the viability of shoreline vegetation. The removal of invasive or noxious weeds does not constitute significant vegetation removal.

(32) "Site potential tree height" means the average height, at age one hundred years, of the tallest mature native conifer species that is capable of growing in the soils found at the site and for which height measurements are noted in the soil survey reports published by the natural resource conservation service and other sources. Each local natural resource conservation service field office maintains the surveys for its area.

West of the Cascade summit, the site potential tree height will be based on either Douglas fir or western hemlock. East of the summit, the species could be ponderosa pine, lodgepole pine, western larch, Englemann spruce, subalpine fir, grand fir, or Douglas fir.

For sites that historically supported cottonwoods as the largest tree, the site potential tree height is the average height, at age seventy-five years, of a black cottonwood tree growing under those site conditions.

(33) "State master program" means the cumulative total of all shoreline master programs and amendments thereto approved or adopted by rule by the department.

(34) "Storm water" means surface water runoff collected and transported by a managed system.

(35) "Substantially degrade" means to cause damage or harm to an area's natural ecological functions. An action is considered to substantially degrade the environment if:

(a) The damaged ecological function or functions affect other related functions or the viability of the larger ecosystem; or

(b) The damage is not reversed or self-correcting through natural means within approximately two years; or

(c) There is the threat, as determined by best available science, that the degrading action could cause significant damage to shoreline ecological functions under foreseeable conditions; or

(d) There is the threat that the action could contribute to damaging ecological functions as part of cumulative impacts from similar permitted activities on nearby shorelines.

(36) "Surface water runoff" means water draining on the surface of the ground on its way to a shoreline.

(37) "Uplands" means those areas lying landward of the shoreline and outside shoreline jurisdiction.

(38) "Vegetation management corridor" means the area extending from a stream or river channel or the bank of a lake or marine shoreline to a distance at least one site potential tree height. On streams or rivers the corridor width is measured landward from the bank full width. On lakes and marine shorelines, the corridor is measured landward of the nearest bank that can support mature tree growth.

(39) "Water-dependent use" means a use or portion of a use which cannot exist in a location that is not adjacent to the water but is dependent on the water by reason of the intrinsic nature of its operations. Examples of water-dependent uses may include ship cargo terminal loading areas, fishing, ferry and passenger terminals, barge loading facilities, ship building and dry docking, marinas, aquaculture, float plane facilities, hydroelectric dams, irrigation facilities, and sewer outfalls.

(40) "Water-enjoyment use" means a recreational use, or other use that facilitates public access to the shoreline as a primary characteristic of the use; or a use that provides for recreational use or aesthetic enjoyment of the shoreline for a substantial number of people as a general characteristic of the use and which through the location, design, and operation assures the public's ability to enjoy the physical and aesthetic qualities of the shoreline. In order to qualify as a water-enjoyment use, the use must be open to the general public and the shoreline-oriented space within the project must be devoted to the specific aspects of the use that fosters shoreline enjoyment. Primary water-enjoyment uses may include, but are not limited to:

• Parks with activities enhanced by proximity to the water;

• Piers and other improvements that facilitate public access to shorelines of the state;

• Restaurants with water views and public access improvements;

• Museums with an orientation to shoreline topics;

• Aquariums;

• Scientific/ecological reserves;

• Resorts with uses open to the public and public access to the shoreline; and any combination of those uses listed above.

(41) "Water-oriented use" means a use that is water-dependent, water-related, or water-enjoyment, or a combination of such uses.

(42) "Water-related use" means a use or portion of a use which is not intrinsically dependent on a waterfront location but whose economic viability is dependent upon a waterfront location because:

(a) Of a functional requirement for a waterfront location such as the arrival or shipment of materials by water or the need for large quantities of water; or

(b) The use provides a necessary service supportive of the water-dependent activities and the proximity of the use to its customers makes its services less expensive and/or more convenient.

Examples include manufacturers of ship parts large enough that transportation becomes a significant factor in the product's cost, professional services serving primarily water-dependent activities and storage of water-transported foods. Examples of water-related uses may include the warehousing of goods transported by water, seafood processing plants, hydroelectric generating plants, gravel storage when transported by barge, oil refineries where transport is by tanker, and log storage.

In addition, the definitions and concepts set forth in RCW 90.58.030, as amended, shall also apply as used herein.

[Statutory Authority: RCW 90.58.140(3) and [90.58].200.  96-20-075 (Order 95-17), § 173-26-020, filed 9/30/96, effective 10/31/96.]

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Prior to submittal of a new or amended master program to the department, local government shall solicit public and agency comment during the drafting of proposed new or amended master programs.  The degree of public and agency involvement sought by local government should be gauged according to the level of complexity, anticipated controversy, and range of issues covered in the draft proposal.  Recognizing that the department must approve all master programs before they become effective, early and continuous consultation with the department is encouraged during the drafting of new or amended master programs.  For local governments planning under chapter 36.70A RCW, local citizen involvement strategies should be implemented that insure early and continuous public participation consistent with WAC 365-195-600.

At a minimum, local government shall:

(1) Conduct at least one public hearing to consider the draft proposal;

(2) Publish notice of the hearing in one or more newspapers of general circulation in the area in which the hearing is to be held.  The notice shall include:

(a) Reference to the authority(s) under which the action(s) is proposed;

(b) A statement or summary of the proposed changes to the master program;

(c) The date, time, and location of the hearing, and the manner in which interested persons may present their views; and

(d) Reference to the availability of the draft proposal for public inspection at the local government office or upon request;

(3) Consult with and solicit the comments of any persons, groups, federal, state, regional, or local agency, and tribes, having interests or responsibilities relating to the subject shorelines or any special expertise with respect to any environmental impact.  The consultation process should include adjacent local governments with jurisdiction over common shorelines of the state;

(4) Where amendments are proposed to a county or regional master program which has been adopted by cities or towns, the county shall coordinate with those jurisdictions and verify concurrence with or denial of the proposal.  For concurring jurisdictions, the amendments should be packaged and processed together.  The procedural requirements of this section may be consolidated for concurring jurisdictions;

(5)(a) Solicit comments on the draft proposal from the department prior to local approval((.)); or

(b) For local governments planning under the Growth Management Act, the local government shall:

(i) Solicit comments from the department on the draft proposal prior to commencing the sixty-day formal review period pursuant to RCW 36.70A.106; and

(ii) When submitted in accordance with the provisions of WAC 173-26-110, the notice of intent to adopt as provided for in RCW 36.70A.106 may, at the option of local government, constitute submittal of the proposal for formal review and final action by the department pursuant to WAC 173-26-110 and 173-26-120.

If a local government planning under the Growth Management Act chooses not to submit the proposal for formal review as provided above, the local government shall notify both the department and the department of community, trade, and economic development of its intent to adopt shoreline policies or regulations, at least sixty days prior to final local approval, pursuant to RCW 36.70A.106;

(6) Comply with chapter 43.21C RCW, the State Environmental Policy Act; and

(7) Approve the proposal.

(8) For local governments not planning pursuant to the Growth Management Act or for local governments planning pursuant to the Growth Management Act and not choosing to submit pursuant to subsection (6)(b)(ii) of this section, the local government must approve the proposal.

[Statutory Authority: RCW 90.58.140(3) and [90.58].200.  96-20-075 (Order 95-17), § 173-26-100, filed 9/30/96, effective 10/31/96.]

A master program or amendment proposed by local government shall be submitted to the department for its review and formal action.  A complete submittal shall include two copies of the following, where applicable:

(1) Documentation (i.e., signed resolution or ordinance):

(a) That the proposal has been approved by the local government; or

(b) For local governments planning pursuant to the Growth Management Act, a notice of intent to adopt pursuant to RCW 36.70A.106 may be submitted provided that:

(i) Said notice is approved and issued by the governing body of the local government; and

(ii) The notice clearly indicates that the proposal is being submitted to the department for formal review and action by the department; and

(iii) The formal review process conducted by the department will include opportunity for public and agency review and comment as provided in WAC 173-26-120; and

(iv) No further action may be taken to modify or adopt the proposal until completion of the state review process; and

(v) Final action on the proposal must be in conformance with the decision of the department on the proposal;

(2) If the proposal includes text amending a master program document of record, it shall be submitted in a form that can replace or be easily incorporated within the existing document.  Amended text shall show strikeouts for deleted text and underlining for new text, clearly identifying the proposed changes.  At the discretion of the department, strikeouts and underlined text may not be required provided the new or deleted portions of the master program are clearly identifiable;

(3) Amended environment designation map(s), showing both existing and proposed designations, together with corresponding boundaries described in text for each change of environment.  Environment designation maps shall include a scale and north arrow and shall be of standard size using distinct reproducible noncolor patterns.   All proposals for changes in environment designation and redesignation shall provide written justification for such based on existing development patterns, the biophysical capabilities and limitations of the shoreline being considered, and the goals and aspirations of the local citizenry as reflected in the locally adopted comprehensive land use plan;

(4) A summary of proposed amendments together with explanatory text indicating the scope and intent of the proposal, staff reports, records of the hearing, and/or other materials which document the necessity for the proposed changes to the master program;

(5) Evidence of compliance with chapter 43.21C RCW, the State Environmental Policy Act, specific to the proposal;

(6) Copies of all public, agency and tribal comments received, including a record of names and addresses of interested parties involved in the local government review process or, where no comments have been received, a comment to that effect.

[Statutory Authority: RCW 90.58.140(3) and [90.58].200.  96-20-075 (Order 95-17), § 173-26-110, filed 9/30/96, effective 10/31/96.]

Review and approval of master programs and amendments by the department shall follow the procedures set forth below:

FORMAL REVIEW:

(1) The department shall review the submitted master program or amendment for compliance with WAC 173-26-100 and 173-26-110.  The department shall notify the local government in writing when it determines that a complete submittal has been received.  If the submittal is determined to be incomplete, the department will identify the deficiencies and so notify the local government in writing.  The review process will not commence until the department determines the submittal is complete.

(2) The department shall provide reasonable notice and opportunity for written comment to all parties of record who expressed interest regarding the local government proposal and to all persons, groups, agencies, and tribes that have requested in writing notice of proposed master programs or amendments generally or for a specific subject matter.  The comment period shall be at least thirty days, unless the department determines that a lack of complexity or controversy surrounding the proposal supports a shorter period.

(3) For master program or amendment proposals involving local governments planning under chapter 36.70A RCW, the department shall provide notice to the department of community, trade, and economic development of its intent to commence formal review of the local government proposal.

(4) At the department's discretion, it may conduct a public hearing during the comment period in the jurisdiction proposing the master program or amendment.

(5) If the department conducts a hearing pursuant to subsection (4) of this section, it shall publish notice of the hearing in at least one newspaper of general circulation in the area affected by the master program.  The public notice shall include:

(a) A description of the proposed master program or amendment;

(b) Reference to the authority under which the action is proposed;

(c) The dates, times, and locations of the public hearing, and the manner in which interested persons may obtain copies of the proposal and present their views.

For master program or amendment proposals involving adoption by rule, the notice of the hearing shall be published at least once in each of the three weeks immediately preceding the hearing in one or more newspapers of general circulation in the county in which the hearing is to be held.

(6) Within fifteen days after the close of the department's public comment period, the department shall request of the local government submitting the proposal a review of the issues if any, identified by the public, interested parties, groups, agencies, and tribes, and a written response as to how the proposal addresses the identified issues consistent with the policy of RCW 90.58.020 and the applicable guidelines.  Local government shall submit its response to the department within forty-five days of the date of the department's letter requesting a response.  If no response is received by the department within the forty-five-day period, the department may proceed with action on the proposal according to subsection (7) of this section.  Within the forty-five-day period, the local government may request in writing additional time to prepare a response.

APPROVAL:

(7) Within thirty days after receipt of the local government written response pursuant to subsection (6) of this section, the department shall make written findings and conclusions regarding the consistency of the proposal with the policy of RCW 90.58.020 and the applicable guidelines, provide a response to the issues identified in subsection (6) of this section and either approve the proposal as submitted, recommend specific changes necessary to make the proposal consistent with chapter 90.58 RCW policy and its applicable guidelines, or deny the proposal in those instances where no alteration of the proposal appears likely to be consistent with the policy of RCW 90.58.020 and the applicable guidelines.  The written findings and conclusions shall be provided to the local government, all interested parties, tribes, and agencies of record on the proposal.

In reaching its determination of consistency with the policy of RCW 90.58.020 and the applicable guidelines, the department shall approve those parts of a master program relating to shorelines unless it determines that the submitted parts are not consistent with the policy of RCW 90.58.020 and the applicable guidelines.  The department shall approve those parts of a master program relating to shorelines of state-wide significance only after determining the program provides for optimum implementation of the state-wide interest as set forth in the policy of RCW 90.58.020 and the applicable guidelines.

(a) In cases where the proposal has been approved by the local government prior to submittal and subsequently:

(i) Is approved by the department as submitted, the effective date of the approved master program or amendment shall be the date of the department's letter to local government approving the submitted master program or amendments.

(((b) If)) (ii) The department recommends changes to the proposal, within thirty days after the department mails the written findings and conclusions to the local government pursuant to this subsection (7), the local government may:

(((i))) (A) Agree to the proposed changes.  Receipt by the department of the written notice of agreement from the local government shall constitute final action by the department approving the revised submittal.  Written notice of the local government acceptance shall be provided by the department to all parties of record.  In such cases, the effective date of the approved master program or amendment is the date the department receives from local government the written notice of agreement; or

(((ii))) (B) Submit an alternative proposal.  If, in the opinion of the department, the alternative is consistent with the purpose and intent of the changes originally proposed by the department in this subsection (7) and with the policy of RCW 90.58.020 and the applicable guidelines, it shall approve the alternative changes and provide written notice to all parties of record.  In such cases, the effective date of the approved master program or amendments is the date of the department's letter to local government approving the alternative proposal.

If the department determines the alternative proposal is not consistent with the purpose and intent of the changes proposed by the department, the department may either deny the alternative proposal or at the request of local government start anew with the review and approval process beginning at WAC 173-26-120.

(b) In cases where the proposal has been submitted prior to final approval by the local government, the department's transmittal of written findings, conclusions and decision shall authorize the local government to take action on the proposal in conformance with the decision of the department.

If the department recommends changes to the proposal, the local government may either accept those changes or submit an alternative proposal.

(i) In those cases where the department accepts the proposal as submitted or where changes are recommended by the department and accepted by the local government, final action may be taken on the proposal by local government and the department shall be notified of the action in writing. The department shall acknowledge receipt of the notice of action in writing which shall constitute final action in approving the proposal. The effective date of the master program or amendment shall be the date of the letter of acknowledgement by the department.

(ii) In those cases where the department recommends changes to the proposal and the local government submits an alternative proposal;

(A) If, in the opinion of the department, the alternative is consistent with the purpose and intent of the changes originally proposed by the department in this subsection (7) and with the policy of RCW 90.58.020 and the applicable guidelines, it shall approve the alternative changes and provide written notice to all parties of record and the local government. Final action may be taken on the proposal by local government and the department shall be notified of the action in writing. The department shall acknowledge in writing receipt of the notice of action which shall constitute final action in approving the proposal. The effective date of the master program or amendment shall be the date of the letter of acknowledgement by the department.

(B) If the department determines the alternative proposal is not consistent with the purpose and intent of the changes proposed by the department, the department may either deny the alternative proposal or at the request of local government start anew with the review and approval process beginning at WAC 173-26-120.

(8) A master program or amendment thereto takes effect when and in such form as it is approved or adopted by rule by the department except when appealed to the shorelines board as provided for in RCW 90.58.190(4) for local governments not planning under chapter 36.70A RCW.  The department's approved document of record, filed at the department, constitutes the official master program.

(9) For local governments planning under chapter 36.70A RCW, after final action by the department on a local government's shoreline master program or amendment the local government shall (pursuant to RCW 90.58.090) promptly publish a notice that the department has taken final action on the master program or amendment.  For purposes of this section, the date of publication for the master program adoption or amendment shall be the date on which the local government publishes the notice that the department has taken final action on the master program or amendment.

[Statutory Authority: RCW 90.58.140(3) and [90.58].200.  96-20-075 (Order 95-17), § 173-26-120, filed 9/30/96, effective 10/31/96.]

SHORELINE MASTER PROGRAM GUIDELINES
NEW SECTION
WAC 173-26-170
Purpose of Part III.

WAC 173-26-170 through 173-26-250 are adopted pursuant to chapter 90.58 RCW, the Shoreline Management Act of 1971, to serve as standards for implementation of the policy of chapter 90.58 RCW for regulation of uses of the shorelines; and provide criteria to local governments and the department of ecology in developing and amending master programs. The purposes of Part III are to: (Text in quotations is excerpted from RCW 90.58.020.)

(1) "Protect against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life. . . ."

(a) Provide measures for the restoration, preservation, and protection of the state shorelines, which are "among the state's most valuable and fragile of its natural resources."

(b) Design and conduct permitted uses and activities "in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area. . . ."

(c) Prepare standards governing the protection of single-family residences and appurtenant structures from shoreline erosion, giving preference to measures to protect single-family residences occupied before January 1, 1992, where the proposed measure is designed to minimize harm to the shoreline natural environment. (See RCW 90.58.100(6).)

(2) Protect the public's right to use and access the surface waters of the state.

(a) "Insure the development of shorelines of the state in a manner which, while allowing limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest."

(b) "Protect generally public rights of navigation and corollary rights incidental thereto."

(c) Preserve "the public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state to the greatest extent feasible consistent with the overall best interest of the state and the people generally."

(d) Regulate the design, construction, and operation of "permitted uses in the shorelines of the state to minimize, insofar as practical, any interference with the public's use of the water."

(3) Foster reasonable and appropriate uses that are in the public's best interest.

(a) Give preference to uses "which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the state's shoreline." Alterations to the natural conditions of the shorelines of the state, in those limited instances where authorized, shall be given priority for:

• "Single-family residences and their appurtenant structures;

• Ports; shoreline recreational uses, including, but not limited to, parks, marinas, piers, and other improvements facilitating public access to the shorelines of the state;

• Industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state; and

• Other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state."

(b) Conduct the "coordinated planning necessary to protect the public's interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest." Ensure equal treatment and fairness to all parties with respect to the use of shoreline resources.

(c) Undertake a "planned, rational, and concerted effort, jointly performed by federal, state and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines."

(d) "Appropriately classify the shorelines and shorelands of the state and revise these classifications when circumstances warrant regardless of whether the change in the circumstances occurs through man-made causes or natural causes."

(e) Reflect that state-owned shorelines of the state are particularly adapted to providing wilderness beaches, ecological study areas, and other recreational activities for the public and give appropriate special consideration to same. (See RCW 90.58.100(4).)

RCW 90.58.050 gives local governments the responsibility of "initiating the planning required by this chapter and administering the regulatory program consistent with the policy and provisions of this chapter." Recognizing that local governments largely bear the costs associated with shoreline management, the policies in this chapter are limited to those necessary to meet the objectives of the act. Nothing in this chapter is intended to reduce the opportunity for local governments to pursue local shoreline management objectives, provided they are consistent with the policies of the act and this chapter.

In 1995, the Washington state legislature passed Engrossed Substitute House Bill 1724, an act relating to implementing the recommendations of the governor's task force on regulatory reform on integrating growth management planning and environmental review. The bill amended, among other statutes, the Growth Management Act, chapter 36.70A RCW; the Shoreline Management Act, chapter 90.58 RCW; and the State Environmental Policy Act, chapter 43.21C RCW. Section 304 of Engrossed Substitute House Bill 1724 amended RCW 90.58.060(1) to read:

(1) The department shall periodically review and adopt guidelines consistent with RCW 90.58.020, containing the elements specified in RCW 90.58.100 for:

(a) Development of master programs for regulation of the uses of shorelines; and

(b) Development of master programs for regulation of the uses of shorelines of state-wide significance.

These guidelines implement the directive to integrate referenced statutes. Specifically, the guidelines are directed toward more efficient planning, permitting, and environmental review and more effective resource management.

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WAC 173-26-170 through 173-26-250 apply to actions taken in the preparation, amendment, and review of local shoreline master programs pursuant to RCW 90.58.060(1). The master programs prepared or amended pursuant to this chapter, when adopted or approved by the department, shall constitute use regulations for the shorelines of the state. WAC 173-26-260 implements the Ocean Resources Management Act (ORMA), chapter 43.143 RCW. WAC 173-26-260 applies to uses conducted in Washington's coastal waters as referenced in WAC 173-26-260(2).

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(1) Master program concepts. The following four concepts are the basis for effective management of Washington's shorelines.

(a) The shoreline master programs are both planning and regulatory tools. RCW 90.58.020 establishes the need for both planning and regulatory action.

The legislature further finds that much of the shorelines of the state and the uplands adjacent thereto are in private ownership; that unrestricted construction on the privately owned or publicly owned shorelines of the state is not in the best public interest; and therefore, coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest. There is, therefor [sic], a clear and urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state, and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines.

The act expresses this dual function in RCW 90.58.030 (3)(b):

"Master program" means the comprehensive use plan for a described area and the use regulations, together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020.

Master programs serve a planning function in several ways. First, they balance and integrate the objectives and interests of local citizens insofar as they are consistent with the Shoreline Management Act. Therefore, the preparation and amending of master programs shall involve active public participation, as called for in WAC 173-26-200(3). Second, they address the full variety of conditions on the shoreline. Third, they consider and, where necessary to achieve the objectives of chapter 90.58 RCW, influence upland planning and regulatory measures. For jurisdictions planning under chapter 36.70A RCW, the Growth Management Act, the requirements for integration of upland and shoreline planning are more specific and are described in subsection (2)(a) of this section. Fourth, master programs address conditions and opportunities of specific shoreline segments identified during shoreline planning efforts by classifying the shorelines into "environment designations" as described in (d) of this subsection.

The results of shoreline planning are summarized in shoreline master program policies that establish broad shoreline management directives. The policies are the basis for regulations that govern use and development along the shoreline. Some development requires a shoreline permit prior to construction. Local governments evaluate the permit application with respect to the shoreline master program policies and regulations and issue a permit only after determining that the development conforms to them. The regulations apply to all uses and activities within shoreline jurisdiction, whether or not a shoreline permit is required and are implemented through other permitting and regulation activities of the local government. See RCW 90.58.140.

(b) Master program elements. RCW 90.58.100(2) states that the master programs shall, when appropriate, include the following elements:

(i) An economic development element for the location and design of industries, transportation facilities, port facilities, tourist facilities, commerce, and other developments that are particularly dependent on their location on or use of shorelines of the state.

(ii) A public access element for making provision for public access to publicly owned areas.

(iii) A recreational element for the preservation and enlargement of recreational opportunities, including, but not limited to, parks, tidelands, beaches, and recreational areas.

(iv) A circulation element consisting of the general location and extent of existing and proposed major thoroughfares, transportation routes, terminals, and other public utilities and facilities, all correlated with the shoreline use element.

(v) A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for housing, business, industry, transportation, agriculture, natural resources, recreation, education, public buildings and grounds, and other categories of public and private uses of the land.

(vi) A conservation element for the preservation of natural resources, including, but not limited to, scenic vistas, aesthetics, and vital estuarine areas for fisheries and wildlife protections.

(vii) An historic, cultural, scientific, and educational element for the protection and restoration of buildings, sites, and areas having historic, cultural, scientific, or educational values.

(viii) An element that gives consideration to the state-wide interest in the prevention and minimization of flood damages.

(ix) Any other element deemed appropriate or necessary to effectuate the policy of this chapter.

The Growth Management Act (chapter 36.70A RCW) also uses the word "element" for discrete sections or chapters of a comprehensive plan. To avoid confusion, "master program element" refers to the definition in the Shoreline Management Act.

Master programs are not required to address master program elements listed in the Shoreline Management Act as discrete sections. Master programs may treat the master program elements as topics addressed throughout master program provisions rather than as a means to organize the master program.

(c) Shorelines of state-wide significance. The Shoreline Management Act identifies certain shorelines as "shorelines of state-wide significance" and raises their status in two ways. First, the Shoreline Management Act sets specific priorities for uses of shorelines of state-wide significance. RCW 90.58.020 states:

The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of state-wide significance. The department, in adopting guidelines for shorelines of state-wide significance, and local government, in developing master programs for shorelines of state-wide significance, shall give preference to uses in the following order of preference which:

(1) Recognize and protect the state-wide interest over local interest;

(2) Preserve the natural character of the shoreline;

(3) Result in long term over short term benefit;

(4) Protect the resources and ecology of the shoreline;

(5) Increase public access to publicly owned areas of the shorelines;

(6) Increase recreational opportunities for the public in the shoreline;

(7) Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary.

Second, the Shoreline Management Act calls for a higher level of effort in implementing its objectives on shorelines of state-wide significance. RCW 90.58.090(4) states:

The department shall approve those segments of the master program relating to shorelines of state-wide significance only after determining the program provides optimum implementation of the policy of this chapter to satisfy the state-wide interest.

WAC 173-26-100 describes methods to provide for the priorities listed in RCW 90.58.020 and to achieve "optimum implementation" as called for in RCW 90.58.090(4).

(d) Shoreline environment designations. Shoreline management must address a wide range of physical conditions and development settings along shoreline areas. Effective shoreline management requires that the shoreline master program prescribe different environment protection measures, allowable use provisions, and development standards for each of these shoreline segments. Therefore, a system is needed for applying policies and use regulations within distinctively different shoreline areas.

The method for local government to account for different shoreline conditions is to assign an environment designation to each distinct shoreline section in its jurisdiction. The environment designation assignments provide the framework for implementing shoreline policies and regulatory measures specific to the environment designation. WAC 173-26-210 presents guidelines for environment designations in greater detail.

Place illustration here.

(2) Basic requirements. Part III of this chapter describes the basic components and content required in a master program. The terms "shall," "must," and "are required" and the imperative voice mean a mandate; the action must be done. The term "should" means that the particular action is required unless there is a compelling reason with respect to the policies of the Shoreline Management Act against doing it. Part III also contains suggestions for fulfilling the requirements which local governments may or may not choose to follow. The term "may" indicates that the action is acceptable, provided it satisfies all other provisions in this chapter. A master program as submitted to the department for approval shall be sufficient and complete to implement the Shoreline Management Act and the provisions of this chapter. A master program shall contain all of the policies and regulations necessary for the department and other reviewers to evaluate shoreline permits for conformance to the Shoreline Management Act and this chapter.

(a) Consistency with comprehensive planning and other development regulations. Shoreline management is most effective when accomplished within the context of comprehensive planning. For cities and counties planning under the Growth Management Act, chapter 36.70A RCW requires mutual and internal consistency between the comprehensive plan elements and implementing development regulations (including master programs). The requirement for consistency is amplified in WAC 365-195-500:

Each comprehensive plan shall be an internally consistent document and all elements shall be consistent with the future land use map. This means that each part of the plan should be integrated with all other parts and that all should be capable of implementation together. Internal consistency involves at least two aspects:

(1) Ability of physical aspects of the plan to coexist on the available land.

(2) Ability of the plan to provide that adequate public facilities are available when the impacts of development occur (concurrency).

Each plan should provide mechanisms for ongoing review of its implementation and adjustment of its terms whenever internal conflicts become apparent.

The Growth Management Act also calls for coordination between local jurisdictions. RCW 36.70A.100 states:

. . . The comprehensive plan of each county or city that is adopted pursuant to RCW 36.70A.040 shall be coordinated with, and consistent with, the comprehensive plans adopted pursuant to RCW 36.70A.00 of other counties or cities with which the county or city has, in part, common borders or related regional issues.

This statutory provision complements watershed-wide or regional planning described in WAC 173-26-200.

Furthermore, legislative findings provided in Engrossed Substitute House Bill 1724, section 1, chapter 347, Laws of 1995 states:

The legislature recognizes by this act that the Growth Management Act is a fundamental building block of regulatory reform. The state and local governments have invested considerable resources in an act that should serve as the integrating framework for all other land-use related laws. The Growth Management Act provides the means to effectively combine certainty for development decisions, reasonable environmental protection, long-range planning for cost-effective infrastructure, and orderly growth and development.

Engrossed Substitute House Bill 1724 also added RCW 36.70A.480(1) to the Growth Management Act, which states:

For shorelines of the state, the goals and policies of the Shoreline Management Act as set forth in RCW 90.58.020 are added as one of the goals of this chapter as set forth in RCW 36.70A.020. The goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW shall be considered an element of the county or city's comprehensive plan. All other portions of the shoreline master program for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations.

Furthermore, RCW 36.70A.481 states:

Nothing in RCW 36.70A.480 shall be construed to authorize a county or city to adopt regulations applicable to shorelands as defined in RCW 90.58.030 that are inconsistent with the provisions of chapter 90.58 RCW.

The Shoreline Management Act addresses the issue of consistency in RCW 90.58.340, which states:

All state agencies, counties and public and municipal corporations shall review administrative and management policies, regulations, plans and ordinances relative to lands under their respective jurisdictions adjacent to the shorelines of the state so as to achieve a use policy on said land that is consistent with the policy of this chapter, the guidelines, and the master programs for the shorelines of the state.

Pursuant to the statutes cited above, the intent of these guidelines is to assist local governments in preparing and amending master programs that fit within the framework of applicable comprehensive plans and facilitate consistent, efficient environmental review as well as effective implementation of the Shoreline Management Act.

Place illustration here.

Several sections in these guidelines include methods to achieve the consistency required by both the Shoreline Management Act and the Growth Management Act.

• First, (b) and (d) of this subsection describe optional methods to integrate master programs and other development regulations and the local comprehensive plan.

• Second, WAC 173-26-220 through 173-26-260 translate the broad objectives in the Shoreline Management Act into more specific policies. They also provide a more defined policy basis on which to frame local shoreline master program provisions and to evaluate the consistency of applicable sections of a local comprehensive plan with the Shoreline Management Act.

• Third, this chapter incorporates the concepts of best available science and ecological functions congruent with both the Shoreline Management Act and the Growth Management Act to achieve greater consistency in critical area regulations and environmental protection in the framework of comprehensive planning.

• Finally, WAC 173-26-210(3) presents specific methods for testing consistency between shoreline environment designations and comprehensive plan land use designations.

(b) Including other documents in a master program by reference. Shoreline master program provisions sometimes address similar issues as other comprehensive plan elements and development regulations such as the zoning code and critical area ordinance. For the purposes of completeness and consistency, local governments may include other locally adopted policies and regulations within their master programs. For example, a local government may include specific portions of its critical area ordinance in the master program, provided the critical area ordinance is consistent with this chapter. This can further reduce duplication by allowing other regulations to satisfy Shoreline Management Act requirements and ensure that local master programs are consistent with other regulations. However, if the critical area ordinance is amended, the corresponding master program provisions will not be altered except through a master program amendment.

Shoreline master programs may include other regulations by referencing a specific, dated edition. In the adoption process the department of ecology will review the referenced development regulation sections for approval as part of the master program. A copy of the referenced regulations shall be submitted to the department with the proposed master program or amendment. If the development regulation is amended, the edition referenced within the master program will still be the operative regulation in the master program. Changing the referenced regulations in the master program to the new edition requires approval of a master program amendment.

Place illustration here.

(c) Incorporating master program provisions into other plans and regulations. Local governments may integrate master program, policies, and regulations into their comprehensive plan policies and implementing development regulations. Master program provisions that are integrated into such plans and development regulations shall be clearly identified so that the department of ecology can review these provisions for approval and evaluate development proposals for compliance. RCW 90.58.120 requires that all adopted regulations, designations, and master programs be available for public inspection at the department of ecology or the appropriate county or city. Local governments shall identify all documents which contain master program provisions and which provisions constitute part of the master program. Clear identification of master program provisions is also necessary so that interested persons and entities may be involved in master program preparation and amendment, as called for in RCW 90.58.130.

Local governments integrating all or portions of their master program provisions into other plans and regulations shall submit a listing to the department of ecology and copies of all provisions that constitute the master program. The master program shall also be sufficiently complete and defined to provide:

• Clear directions to applicants applying for shoreline permits; and

• Clear evaluation criteria and standards to the local governments, the department, other agencies, and the public for reviewing permit applications with respect to state and local shoreline management provisions.

(d) Multijurisdictional master program. Two or more adjacent local governments are encouraged to jointly prepare master programs. Jointly proposed master programs may offer opportunities to effectively manage natural resources that cross jurisdictional boundaries. Local governments jointly preparing master programs shall provide the opportunity for public participation locally in each jurisdiction, as called for in WAC 173-26-200 (3)(b) and submit to the department the multijurisdictional master program for approval.

Place illustration here.

(e) Master program contents. Master programs shall include the following contents described in (e)(i) through (iii) of this subsection.

(i) Master program policies. Master programs shall provide clear, consistent policies that translate broad state-wide objectives of this chapter into local directives. Policies are statements of intent directing or authorizing a course of action or specifying criteria on which to make a public decision. They provide a comprehensive basis for the shoreline master program regulations, which generally are more specific, and prescriptive standards used to evaluate shoreline development.

Shoreline policies shall be developed through a comprehensive shoreline planning process allowing for public and affected Indian tribes participation. For governments planning under the Growth Management Act, the policies shall also be consistent with the planning goals of RCW 36.70A.020 and master program policies are considered a shoreline element of the local comprehensive plan.

At a minimum, shoreline master program policies shall:

(A) Be consistent with state shoreline management policies listed in this chapter and the objectives of the Shoreline Management Act.

(B) Address the master program elements of RCW 90.58.020.

(C) Include policies for environment designations as described in WAC 173-26-060. The policies shall be accompanied by a map or physical description of the schematic environment designation boundaries in sufficient detail to compare with comprehensive plan land use designations. Environment designations include "high-intensity," "shoreline residential," "urban conservancy," "rural conservancy," "natural," and "aquatic." However, local governments may establish their own sub-classifications or retain current designations, provided they are consistent with this chapter.

(ii) Master program regulations. RCW 90.58.100 states:

The master programs provided for in this chapter, when adopted or approved by the department, shall constitute use regulations for the various shorelines of the state.

In order to implement the directives of the Shoreline Management Act, master program regulations shall:

(A) Be in sufficient scope and detail to ensure the implementation of the Shoreline Management Act, state-wide shoreline management policies of this chapter, and local master program policies;

(B) Include environment designation regulations sufficient to describe: Allowed uses, prohibited uses, conditional uses, and development standards, such as: Shoreline setbacks, vegetation management requirements, development intensity, and shoreline modification provisions, necessary to: Protect the public trust, provide for preferred uses, and protect the environment within shoreline areas.

(C) Include general regulations applicable to all environment designations, use regulations that address issues of concern to specific uses, and shoreline modification activity regulations that protect the shoreline ecology from the effects of human-made modifications to the shoreline.

Local governments are encouraged to prepare master program provisions that distinguish between shoreline modification activities and shoreline uses. Shoreline modification activities are generally related to construction of a physical element such as a dike, breakwater, dredged basins, or landfill, but they can include other actions such as clearing, grading, or application of chemicals. Shoreline modification activities usually are undertaken in support of or in preparation for a shoreline use; for example, landfill (shoreline modification activity) required for a cargo terminal (industrial use) or dredging (shoreline modification activity) to allow for a marina (boating facility use).

(iii) Administrative provisions.

(A) Statement of applicability. The Shoreline Management Act's provisions apply to all development and use activities within its jurisdiction, whether or not those activities require a shoreline permit. Many activities that may not require a permit, such as clearing vegetation, fertilizing crops, and residential bulkhead construction, can cause serious damage to adjacent properties and lands held in public trust by the state. Furthermore, there has been, historically, some public confusion regarding the Shoreline Management Act's applicability. Therefore, all master programs shall include the following statement:

"All uses, development, and activities occurring within shoreline jurisdiction must conform to chapter 90.58 RCW: The Shoreline Management Act, chapter 173-26 of the Washington Administrative Code, and this master program."

(B) Conditional use and variance provisions. RCW 90.58.100(5) states:

Each master program shall contain provisions to allow for the varying of the application of use regulations of the program, including provisions for permits for conditional uses and variances, to insure that strict implementation of a program will not create unnecessary hardships or thwart the policy enumerated in RCW 90.58.020. Any such varying shall be allowed only if extraordinary circumstances are shown and the public interest suffers no substantial detrimental effect. The concept of this subsection shall be incorporated in the rules adopted by the department relating to the establishment of a permit system as provided in RCW 90.58.140(3).

All master programs shall include standards for reviewing conditional use permits and variances which conform to chapter 173-27 WAC. Conditional use provisions shall conform to guidelines in WAC 173-26-080 (2)(f).

(C) Administrative permit review and enforcement procedures. RCW 90.58.140(3) states:

The local government shall establish a program, consistent with rules adopted by the department, for the administration and enforcement of the permit system provided in this section. The administration of the system so established shall be performed exclusively by the local government.

Except for items noted in (e)(i) and (ii) of this subsection, which must be included in the master program, local governments may, but are not required to, include administrative, enforcement, and permit review procedures into the master program. These procedures shall conform to the Shoreline Management Act, specifically RCW 90.58.140, and to chapter 173-25 WAC. However, the procedures may be defined by a local government ordinance separate from the master program.

Adopting review and enforcement procedures separate from the master program allows local governments greater flexibility in revising their shoreline permit review procedures and integrating them with other permit processing activities.

(3) Monitoring and documentation. For the purposes of monitoring shoreline development and assessing the cumulative impacts, trends and effectiveness of shoreline management practices, local governments shall retain application documentation of all permits and project review actions issued for development within shoreline jurisdiction, including building permits, land subdivision permits, permits for septic systems and sewage facilities, SEPA documentation, and letters of exemption. These materials shall be accessible to state agencies and the public for monitoring shoreline conditions. WAC 173-26-200 (3)(i) describes procedural requirements for monitoring.

(4) Consistency and compliance with other laws. There are many other state and federal laws and treaty rights addressing issues related to shoreline management and activities within shoreline jurisdictions. The intent and provisions of these laws should be incorporated into local master programs, where appropriate, in order to achieve a more integrated regulatory system. Likewise, the Shoreline Management Act applies, within shoreline jurisdiction, to activities specific to these other laws.

RCW 90.58.260 states:

The state, through the department of ecology and the attorney general, shall represent its interest before water resource regulation management, development, and use agencies of the United States, including among others, the federal power commission, environmental protection agency, corps of engineers, department of the interior, department of agriculture and the atomic energy commission, before interstate agencies and the courts with regard to activities or uses of shorelines of the state and the program of this chapter. Where federal or interstate agency plans, activities, or procedures conflict with state policies, all reasonable steps available shall be taken by the state to preserve the integrity of its policies.

Where there is a perceived conflict or inconsistency between the Shoreline Management Act or this chapter and other state or federal laws or their implementation guidelines, contact the department of ecology. Contact affected Indian tribes if treaty rights issues are identified.

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(1) Applicability. This section outlines a comprehensive process to prepare or amend a shoreline master program. Local governments shall incorporate the steps indicated if one or more of the following criteria apply:

(a) The master program amendments being considered represent a significant modification to shoreline management practices within the local jurisdiction; they modify more than one environment designation boundary, significantly add, change or delete or use regulations, or change where specific uses are allowed;

(b) Physical shoreline conditions have changed significantly, such as substantial changes in shoreline use or priority habitat integrity, since the last comprehensive master program amendment;

(c) The master program amendments being considered contain provisions that will affect a substantial portion of the local government's shoreline areas;

(d) There are substantive issues such as priority species recovery or water resource management that must be addressed on a comprehensive basis;

(e) The current master program and the comprehensive plan are not mutually consistent; or

(f) There was no previous comprehensive master program amendment since the original adoption.

If a local jurisdiction has undertaken a recent comprehensive update of the master program but seeks to make minor revisions to bring the master program into compliance with these guidelines or other state requirements, these modifications may be made without undertaking a comprehensive process, provided the issues can be addressed by revising individual provisions that do not affect other aspects of the master program.

(2) Basic concepts, definitions, and principles.

(a) Use of scientific and technical information. RCW 90.58.100(1) states:

In preparing the master programs and any amendments thereto, the department and local governments shall, to the extent feasible:

(a) Utilize a systematic interdisciplinary approach that will ensure the integrated use of the natural and social science and the environmental design arts;

(b) Consult with and obtain the comments of any federal, state, regional, or local agency having any special expertise with respect to any environmental impact;

(c) Consider all plans, studies, surveys, inventories, and systems of classification made or being made by federal, state, regional, or local agencies, by private individuals, or by organizations dealing with pertinent shorelines of the state;

(d) Conduct or support such further research, studies, surveys, and interviews as are deemed necessary;

(e) Utilize all available information regarding hydrology, geography, topography, ecology, economics, and other pertinent data;

(f) Employ, when feasible, all appropriate modern scientific data processing and computer techniques to store, index, analyze, and manage the information gathered.

This requirement is consistent with RCW 36.70A.172(1) of the Growth Management Act, which states:

(1) In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.

In order to better integrate Shoreline Management Act and Growth Management Act activities, where so noted, the requirement for best available science refers to both the provisions of RCW 90.58.100(1) noted above, the definition in WAC 173-26-020 and the provisions of Washington Administrative Code implementing RCW 36.70A.172.

To address the requirements for the use of best available science, local governments shall incorporate the following three steps into their master program development and amendment process.

(i) Identify and assemble information that represents best available science applicable to the issue of concern. At a minimum, local governments should make use of, and where applicable, incorporate scientific information, aerial photography, inventory data, technical assistance materials, manuals and services from reliable sources of science. Local governments should also contact relevant state agencies, universities, and affected Indian tribes for available information. If local governments initiate scientific research as a basis for master program provisions, that research shall adhere to best available science principles. Local governments are encouraged to work interactively with state resource agencies and affected Indian tribes to address technical issues beyond the scope of existing information resources or locally initiated research.

(ii) Prepare management recommendations that are based on best available science. Where ecological systems extend beyond the local jurisdiction, management recommendations should be consistent with state-wide and regional management efforts such as watershed planning.

(iii) Base master program provisions on the science based management recommendations. Local governments should be prepared to identify the following:

• Scientific information and management recommendations on which the master program provisions are based;

• Assumptions and information gaps in the scientific analysis;

• Risks to ecological functions associated with master program provisions and methods to monitor conditions and adapt management practices over time.

(b) Adaptive management. Adaptive management involves the monitoring of shoreline conditions and the revision of regulatory and physical improvement measures to more fully achieve the objectives in RCW 90.58.020. Because there are unavoidable gaps in scientific knowledge, adaptive management is necessary to monitor and correct deficient management practices.

A necessary first step in effective adaptive management is securing shoreline inventory information as a base line sufficient to document changing conditions over time. Monitoring activities shall be sufficiently detailed and timed to identify changes in conditions in time to effectively modify practices. Some adaptive management activities may be local, such as the monitoring of water quality or sediment transport on a particular shoreline. Other issues will be more effectively addressed through watershed, regional or state-wide activities.

The concept of adaptive management may also be applied to shoreline use objectives. For example, monitoring the changes in harbor uses from water-dependent activities to nonwater-dependent activities can alert the local government to the need to revise shoreline use policies.

(c) Ecological functions. The concept of ecological functions, as defined in WAC 173-26-020, recognizes that successful management of the shoreline environment in both undeveloped and developed areas depends on sustaining the interaction between the various functions and that the loss of one or more function can limit the viability of the shoreline ecology in general. Therefore, shoreline master programs shall address the full range of riparian, marine, estuarine, wetland, and upland ecological functions, including, but not limited to, those identified in WAC 173-26-020.

Nearly all shoreline areas, even substantially developed or degraded areas, retain some important ecological functions. For example, an intensely developed harbor area may also serve as a fish migration corridor and feeding area critical to species survival. Also, ecological systems found within shoreline jurisdictions are themselves interconnected. For example, the life cycle of anadromous fish depends upon the viability of freshwater marine and terrestrial shoreline ecosystems, and many wildlife species associated with the shoreline depend on the health of both terrestrial and aquatic environments. Therefore, the objectives for maintenance and enhancement of ecological functions generally apply to all shoreline areas not just those that remain relatively unaltered.

(d) Preferred uses. RCW 90.58.020 states:

In the implementation of this policy the public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. To this end uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the state's shoreline. Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences and their appurtenant structures, ports, shoreline recreational uses including, but not limited to, parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state. Alterations of the natural condition of the shorelines and shorelands of the state shall be recognized by the department. Shorelines and shorelands of the state shall be appropriately classified and these classifications shall be revised when circumstances warrant regardless of whether the change in circumstances occurs through man-made causes or natural causes.

Consistent with this policy, these guidelines use the terms "water-dependent," "water-related," and "water-enjoyment," as defined in WAC 173-26-030, when discussing appropriate uses for various shoreline areas.

Shoreline areas, being a limited ecological and economic resource, are the setting for competing uses and ecological preservation and rehabilitation activities. Consistent with RCW 90.58.020, local governments shall apply the following priorities, starting with (i) as the top priority, when determining allowable uses and resolving use conflicts on shorelines within their jurisdiction.

(i) Protect the integrity of existing ecological functions. Improve ecological functions over time on a comprehensive basis (for example, within a watershed or littoral drift cell).

(ii) Reserve shoreline areas for water-dependent uses and establish policies and regulations so that water-dependent development is consistent with comprehensive ecological protection and enhancement objectives.

(iii) Reserve shoreline areas for water-related and water-enjoyment uses and establish policies and regulations so that water-related development is compatible with water-dependent uses and ecological protection and enhancement objectives.

(iv) Establish policies and regulations so that nonwater-oriented uses, including residential uses, are limited to those locations where either water-oriented uses are inappropriate or where nonwater-oriented uses demonstrably contribute to the objectives of the Shoreline Management Act.

Local conditions and environmental constraints may result in lower priority uses being accommodated. For example, an estuarine shoreline may not be an appropriate site for a water-dependent use, such as a boating facility, but may accommodate a bird watching trail (water-enjoyment) of a lower priority.

(3) Steps in developing a master program.

(a) Process overview. Figure 5 below illustrates a generalized process to prepare or comprehensively amend a shoreline master program. Local governments may modify the timing of the various steps, integrate the process into other planning activities, add steps or activities to the process, or work jointly with other jurisdictions or regional efforts, provided the provisions of this chapter are met.

The department of ecology will provide a shoreline master program amendment checklist to help local governments identify issues to address. The checklist will not create new or additional requirements beyond the provisions of this chapter. The checklist is intended to aid the preparation and review of master program amendments. Local governments shall submit the completed checklist with the proposed master program amendments. The department will send completed checklists to other resource agencies and affected Indian tribes reviewing the master program.

Place illustration here.

(b) Establish public and intergovernmental participation process.

(i) Public participation. RCW 90.58.130 states:

To insure that all persons and entities having an interest in the guidelines and master programs developed under this chapter are provided with a full opportunity for involvement in both their development and implementation, the department and local governments shall:

(1) Make reasonable efforts to inform the people of the state about the shoreline management program of this chapter and in the performance of the responsibilities provided in this chapter, shall not only invite but actively encourage participation by all persons and private groups and entities showing an interest in shoreline management programs of this chapter; and

(2) Invite and encourage participation by all agencies of federal, state, and local government, including municipal and public corporations, having interests or responsibilities relating to the shorelines of the state. State and local agencies are directed to participate fully to insure that their interests are fully considered by the department and local governments.

For local governments planning under the Growth Management Act, the provisions of RCW 36.70A.140 also apply.

At a minimum, all local governments shall be prepared to describe and document their methods to ensure that all interested parties have a meaningful opportunity to participate. If a local committee or other group is appointed to advise the amendment process, local governments shall ensure that that body represents a broad range of interests reflective of all local citizens and not a selected segment of the populace.

(ii) Communication with state agencies. Before undertaking substantial work, local governments shall notify applicable state resource agencies to identify state interests, relevant regional and state-wide efforts, available information, and methods for coordination and input. Contact the department of ecology for a list of applicable agencies to be notified.

(iii) Communications with affected Indian tribes. Prior to undertaking substantial work, local governments shall notify affected Indian tribes to identify tribal interests, relevant tribal efforts, available information and methods for coordination and input. Contact the individual tribes or coordinating bodies such as the Northwest Indian Fisheries Commission for a list of affected Indian tribes to be notified.

(c) Inventory shoreline conditions. This chapter requires that several shoreline issues such as critical area protection, vegetation management and shoreline stabilization be addressed on a comprehensive basis to achieve a net gain in ecological functions over time within the shoreline ecosystem considered as a whole. To accomplish this requires an inventory that is significantly comprehensive to characterize the shoreline ecosystems and sufficiently detailed to provide baseline information for monitoring and adaptive management.

The preferred method for local governments to accomplish a detailed comprehensive inventory of ecological conditions is to participate in a interjurisdictional state-wide, regional, or watershed based inventory. If such an inventory is being conducted to improve resource management efforts, local governments preparing master program amendments should work with the applicable state agencies and affected Indian tribes to determine the level of detail, methodology and cooperative steps necessary to provide base line for monitoring purposes.

The department of ecology will seek to secure services and resources for coordinated, interjurisdictional inventory work. If there is not an interjurisdictional inventory process and if the resources necessary to accomplish a detailed and comprehensive inventory described above are not available from the state or other sources, local governments preparing comprehensive master program amendments shall, at a minimum, conduct an inventory in sufficient detail to designate shoreline environments and write provisions to protect existing resources and accommodate preferred shoreline uses, in accordance with the following provisions in (c) of this subsection.

Use best available science. Gather and incorporate all available information, existing inventory data and materials from state agencies, affected Indian tribes, watershed management planning, and other appropriate sources. In conjunction with state agencies, ensure that, wherever possible, inventory methods and protocols are consistent with those of neighboring jurisdictions and state efforts so that the information can be compiled on a regional and state-wide basis. Contact the department of ecology to determine information sources and other relevant efforts.

At a minimum, and to the extent such information is reasonably available, address the following:

(i) Shoreline use and adjacent upland land use and activity patterns.

(ii) Critical areas, as required by RCW 36.70.170, and opportunities for ecological rehabilitation.

(iii) Areas of special interest, such as priority habitats, rapidly developing waterfronts, cleanup sites, or eroding shorelines, to be addressed in new master program provisions.

(iv) Conditions and regulations in shoreland and upland areas that affect shorelines, such as surface water management and land use regulations.

(v) Existing and potential shoreline public access sites.

(vi) General location of bank full width limits, channel migration zones, and flood plains.

(vii) Gaps in existing information. During the initial inventory, local governments should identify what additional information may be necessary for more effective shoreline management.

(viii) If the shoreline is rapidly developing or subject to substantial human changes such as forestry practices, a more definitive analysis of existing trends based on past records or aerial photographs may be necessary to identify cumulative impacts such as bulkhead construction, intrusive development on priority habitats, and conversion of harbor areas to nonwater-oriented uses.

(ix) If archaeological or historic resources have been identified in shoreline jurisdiction, consult with the state historic preservation office and local affected Indian tribes regarding existing archaeological, and historical information.

Even if an interjurisdictional inventory is being performed, the local government shall collect inventory information described in (c)(i) through (ix) of this subsection not addressed by the interjurisdictional program. An inventory's level of detail will be a consideration in setting shoreline regulations. As a general rule, the less known about existing resources the more stringent shoreline master program provisions need to be to ensure protection. If there is a question about the extent or condition of an existing ecological resource, then the master program provisions shall be sufficiently restrictive to ensure that the resource is not damaged.

(d) Analyze shoreline conditions based on best available science and address special topics. Before establishing specific master program provisions, local governments shall perform analysis and planning tasks necessary to ensure effective shoreline management provisions, including the topics below, if applicable.

(i) Ecological systems analysis. Prepare a generalized characterization of comprehensive ecological systems, such as riparian corridors, estuaries, sediment transportation, channel migration, and aquatic habitats. To the extent reasonable and necessary for establishing master program provisions, identify the primary ecological functions of the shoreline as an ecological system. Evaluate how these ecological functions are managed under the current master program and will be managed under proposed provisions. For shorelines of state-wide significance, the requirement for optimum implementation places a greater imperative on identifying and understanding ecological functions that support resources of state-wide importance.

The intent of this requirement is to, at a minimum, present a generalized understanding of the ecological resources within the jurisdiction and to indicate the broad measures necessary to protect and improve their ecological viability. Also, the guidelines for riparian corridor management, critical saltwater habitats, vegetation management, flood hazard reduction, and shoreline stabilization require that these issues be addressed on a comprehensive basis. Master program provisions for these topics shall be based on a systematic analysis of the measures necessary to achieve no net loss and net gain in ecological functions over time, as measured on a watershed- or ecosystem-wide basis.

Local governments are encouraged to accomplish this analysis by participating in state-led or interjurisdictional efforts. If the jurisdiction is part of an intergovernmental watershed management plan or other regional plan, incorporate the applicable recommendations of that effort, provided the recommendations are consistent with the Shoreline Management Act and these guidelines.

If the jurisdiction contains priority habitats or species as defined by the state, work with federal, state, and local resource agency teams and affected Indian tribes to identify specific master program provisions, monitoring techniques and, additional studies that may be needed.

(ii) Shoreline use analysis and priorities. If extensive development or change in use of the jurisdiction's shoreline areas is projected, conduct an analysis to determine the future demand for shoreline space and methods to resolve potential use conflicts. Characterize current shoreline use patterns and projected trends to ensure a balance of uses consistent with chapter 90.58 RCW and subsection (2)(d) of this section and WAC 173-26-210(5).

If the jurisdiction includes a harbor area or urban waterfront with intensive uses or significant development issues, work with the Washington state department of natural resources and port authorities to ensure consistency with harbor area statutes and regulations. Identify measures and strategies to encourage appropriate use of these shoreline areas while pursuing opportunities for environmental rehabilitation.

Harbor areas and areas that are generally considered navigable for commercial purposes shall be reserved for water-dependent and water-related uses unless the local governments can demonstrate that adequate shoreline is reserved for future water-dependent and water-related needs. Local governments may prepare master program provisions to allow mixed-use developments that include and support water-dependent uses and address specific conditions that affect water-dependent uses.

(iii) Cumulative impacts. If the area is experiencing substantial cumulative adverse impacts to the shoreline environment due to incremental development, such as residential bulkheads, residential piers, or runoff from newly developed properties, or if substantial incremental development is expected along the shoreline, develop, in conjunction with the department of ecology, methods to assess, minimize, and mitigate cumulative impacts to the shoreline environment. This assessment should include potential impacts due to all development including those activities not requiring a shoreline permit. At a minimum, local governments, with the assistance of state agencies, should project the ultimate allowed full build-out condition for existing and proposed master program provisions being considered.

(iv) Shorelines of state-wide significance. If the area contains substantial amounts of shorelines of state-wide significance, undertake the steps outlined in WAC 173-26-250.

(v) Special area planning. If the jurisdiction includes a complex shoreline ecology, changing uses, or other unique features or issues, the local government may undertake special area planning and request state assistance to conduct a shoreline ecological planning and development plan that provides additional scientific information and guidance in techniques to accommodate necessary water-dependent development while enhancing the shoreline's overall ecological viability. Special area planning may be used to address: Public access, vegetation management, shoreline use compatibility, port development master planning, ecological rehabilitation, or other issues best addressed on a comprehensive