Original Notice.

Preproposal statement of inquiry was filed as WSR 99-23-103.

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; and 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 The changes will eliminate burdensome and outdated regulations, clarify state interests in shorelines and incorporate more efficient and effective regulatory reform measures in the guidelines.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 does not apply 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:

Pasco
Date:	Tuesday, June 27.
Location:	Columbia Basin Community College, 2600 North 20th, Workforce Training Center, Room 180.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Spokane
Date:	Wednesday, June 28.
Location:	Spokane Intercollegiate Research and Technology Institute, 665 North Riverpoint Boulevard, Room 201.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Wenatchee
Date:	Thursday, June 29.
Location:	Chelan County PUD, 327 North Wenatchee Avenue.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Olympia/Lacey
Date:	Wednesday, July 5.
Location:	Ecology Department Auditorium, 300 Desmond Drive.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Raymond
Date:	Thursday, July 6.
Location:	Raymond High School Auditorium, 825 Commercial.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Vancouver, Washington
Date:	Monday, July 10.
Location:	Water Resource Education Center, 4600 S.E. Columbia Way.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Seattle
Date:	Tuesday, July 11.
Location:	Seattle Center, Shaw Room, 305 Harrison Street.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.
Bellingham
Date:	Wednesday, July 12.
Location:	Whatcom County Courthouse Council Chambers, 311 Grand Avenue.
Open house:	5:30 p.m.
Public hearing:	7:00 p.m.

Assistance for Persons with Disabilities: Contact Tim Gates by June 16, 2000, TDD (360) 407-6006, or (360) 407-7256, P.O. Box 47600.

Submit Written Comments to: Shoreline Rule, Department of Ecology, Shorelands and Environmental Assistance Program, P.O. Box 47600, Olympia, WA 98504-7600, e-mail shorerule@ecy.wa.gov, fax (360) 407-6902 by August 7, 2000.

Date of Intended Adoption: August 31, 2000.

May 23, 2000

Tom Fitzsimmons

for Dan Silver

Deputy Director

OTS-4065.3

The provisions of this chapter implement the requirements of chapter 90.58 RCW, the Shoreline Management Act of 1971.      RCW 90.58.200 authorizes the adoption of rules by the department as necessary and appropriate to carry out the provisions of the act.      RCW 90.58.080 directs local governments to develop and administer local shoreline master programs for regulation of uses on shorelines of the state.      Such local programs should be integrated with other local government systems for administration and enforcement of land use regulations.      RCW 36.70A.480 provides that the goals and policies contained in a local shoreline master program shall be considered an element of the local comprehensive plan required by the Growth Management Act.      All other portions of the local shoreline master program, including the use regulations, are considered a part of the local development regulations required by the Growth Management Act.

This chapter is drafted to also reflect RCW 90.58.050 which provides that the Shoreline Management Act is intended to be a cooperative program between local government and the state.      It is the intent of this chapter to provide minimum procedural requirements as necessary to comply with the statutory requirements while providing latitude for local government to establish procedural systems based on local needs and circumstances.

Pursuant to the Shoreline Management Act, the department must approve master programs prepared by local governments or adopt them by rule consistent with the act.      In order to facilitate this process, Part I of this chapter establishes a recordkeeping system for the department and defines the contents of the state master program.      Part II sets forth procedures for approving and adopting master programs and amendments thereto. Parts III and IV comprise the guidelines pursuant to RCW 90.58.060 and provide alternative approaches to developing the content of shoreline master programs. Part V addresses the requirements of the state Ocean Resources Management Act.

[Statutory Authority: RCW 90.58.140(3) and [90.58].200.      96-20-075 (Order 95-17), § 173-26-010, filed 9/30/96, effective 10/31/96.]

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

(1) "Act" means the Washington State Shoreline Management Act, chapter 90.58 RCW.

(2) "Adaptive management" means the modification of management practices to address changing conditions and new knowledge. Adaptive management is an approach that incorporates monitoring and research to allow projects and activities, including projects designed to produce environmental benefits, to go forward in the face of some uncertainty regarding consequences. The key provision of adaptive management is the responsibility to change adaptively in response to new understanding or information after an action is initiated.

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

(((3))) (5) "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))) (6) "Aquatic" means pertaining to those areas waterward of the ordinary high-water mark.

(7) "Bank full width" means the horizontal projection of bank full depth to the stream bank. Most river channels are bordered by a relatively flat area or valley floor. When the water fills the channel completely, or is at bank full stage, this surface is level with the flood plain. The stream cuts down or builds up as climate and watershed conditions change because there is a new relation between discharge and sediment transport and storage. The channel will erode or modify its flood plain in response to changes in discharge and sediment. The former flood plain it had been constructing is thus abandoned. An abandoned flood plain is called a terrace. While a terrace is flooded on occasion, the active flood plain is frequently flooded by discharges that occur approximately every 1.5 years to 2.0 years in the annual flood series. Bank full depth means the elevation of the water surface of a stream flow having a return period of approximately 1.5 years measured from the line of maximum depth of the stream or thalweg. In those valleys that narrowly confine the channel such that no flood plain can be built, this bank full stage projection still applies.

(8) "Channel migration zone (CMZ)" means the lateral extent of likely movement along a stream reach with evidence of active stream channel movement over the past one hundred years. Evidence of active movement can be provided from aerial photos or specific channel and valley bottom characteristics. A time frame of one hundred years was chosen because aerial photos and field evidence can be used to evaluate movement in this time frame. Also, this time span typically represents the time it takes to grow mature trees that can provide functional large woody debris to most streams. In large meandering rivers a more detailed analysis can be conducted to relate bank erosion processes and the time required to grow trees that function as stable large woody debris. The CMZ shall include floodways and wetlands, as defined under chapter 90.58 RCW, whether associated with either shorelines of the state or shorelines of state-wide significance, as defined under chapter 90.58 RCW.

With the exception of shorelands in the "natural" and "rural conservancy" environments, areas separated from the active channel by legally existing artificial channel constraints that limit bank erosion and channel avulsion without hydraulic connections shall not be considered within the CMZ. All areas, including areas within the "natural" and "rural conservancy" environments, separated from the natural channel by legally existing structures designed to withstand the 100-year flood shall not be considered within the CMZ. A tributary stream or other hydraulic connection allowing PTE species fish passage draining through a dike or other constricting structure shall be considered part of the CMZ.

(9) "Department" means the state department of ecology((;)).

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

(11) "Development regulations" means the controls placed on development or land uses ((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))) (12) "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))) (13) "Drift cell," "drift sector," or "littoral cell" means a particular reach of marine shore in which littoral drift may occur without significant interruption and which contains any natural sources of such drift and also accretion shore forms created by such drift.

(14) "Ecological functions" or "shoreline functions" means the physical, chemical, and biological processes that contribute to the proper maintenance of the aquatic and terrestrial environments that constitute the shoreline ecosystem. Ecological functions relevant to specific shoreline ecological systems include, but are not limited to:

(a) Riverine:

• Hydrologic processes: Maintaining a natural range of flow variability, sideflow and overflow channel functions, reducing peak flows and downstream erosion, and helping to maintain base flows.

• Water quality: Temperature; removing excessive nutrients and toxic compounds.

• Dynamic sediment processes: Sediment removal, stabilization, transport, deposition, and providing spawning gravels.

• Habitat for: Proposed, threatened, endangered, and priority species (whatever they may be in the jurisdiction); aquatic and shoreline-dependent birds, invertebrates, and mammals; amphibians; and anadromous and resident native fish. Habitat functions may include, but are not limited to, shade, litter and woody debris recruitment, refugia, and food production.

• Hyporheic functions: Water quality, water storage, vegetation base, and sediment storage.

(b) Lacustrine:

• Water quality: Removing excessive nutrients and toxic compounds and removing and/or stabilizing sediments.

• Habitat for: Proposed, threatened, endangered, and priority species (whatever they may be in the jurisdiction); aquatic and shoreline-dependent birds, invertebrates, and mammals; amphibians; and anadromous and resident native fish. Habitat functions may include, but are not limited to, shade, litter and woody debris recruitment, refugia, and food production.

(c) Marine:

• Water quality: Removing excessive nutrients and toxic compounds.

• Dynamic sediment processes: Sediment removal, stabilization, transport, deposition, and providing spawning gravels.

• Wave attenuation.

• Habitat for: Proposed, threatened, endangered, and priority species (whatever they may be in the jurisdiction); aquatic and shoreline-dependent birds, invertebrates, and mammals; amphibians; and anadromous and resident native fish. Habitat functions may include, but are not limited to, shade, litter and woody debris recruitment, refugia, and food production.

(d) Wetlands:

• Flood attenuation.

• Water quality: Removing excessive nutrients and toxic compounds.

• Ground water recharge.

• Maintenance of base flows.

• Nutrient filtering.

• Habitat for: Proposed, threatened, endangered, and priority species (whatever they may be in the jurisdiction); aquatic and shoreline-dependent birds, invertebrates, and mammals; amphibians; and anadromous and resident native fish. Habitat functions may include, but are not limited to, shade, litter and woody debris recruitment, refugia, and food production.

When used in Part IV, sections 270 through 350 of this chapter, the term "ecological functions" shall include all functions necessary for properly functioning condition for PTE species.

(15) "Ecologically altered shorelines" means those shorelines where humans have directly or indirectly modified the vegetation or shoreline configuration in a manner that significantly influences or reduces the natural shoreline functions.

(16) "Ecologically intact shorelines" means those shoreline areas that retain the majority of their natural shoreline functions, as evidenced by the shoreline configuration and the presence of native vegetation or, in rivers, a natural range of flow variability. Generally, but not necessarily, ecologically intact shorelines are free of structural shoreline modifications, structures, and intensive human uses. In unmanaged forested areas, they generally include native vegetation with diverse plant communities, multiple canopy layers, and the presence of large woody debris available for recruitment to adjacent water bodies.

Recognizing that there is a continuum of ecological conditions ranging from near natural conditions to totally degraded and contaminated sites, this term is intended to delineate those shoreline areas that provide valuable functions for the larger aquatic and terrestrial environments which could be lost or significantly reduced by human development. Whether or not a shoreline is ecologically intact is determined on a case-by-case basis.

The term "ecologically intact shorelines" applies to all shoreline areas meeting the above criteria ranging from larger reaches that may include multiple properties to small areas located within a single property.

(17) "Ecosystem-wide processes" means the suite of physical and geologic processes of erosion, transport, and deposition and specific chemical processes (e.g., flocculation) that shape landforms within a specific shoreline ecosystem and determine both the types of habitat that are present and the associated ecological functions and their processes. Ecosystem-wide processes include, but are not limited to:

(a) Riverine fluvial processes: Landform and channel erosion; sediment transport and load in channel and overbank; channel dynamics, including channel gradation and migration; and changes in channel form during flooding.

(b) Lacustrine, tidal wave, and current processes: Wave erosion (including refraction), littoral drift, and tidal erosion and deposition.

(18) "Feasible" means, for the purpose of this chapter, that an action, such as a development project, mitigation, or preservation requirement, meets all of the following conditions:

(a) The action can be accomplished with technologies and methods that have been used in the past, or studies or tests have demonstrated that such approaches are currently available and likely to achieve the intended results;

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

(c) The action does not physically 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 on 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. For the provisions of Part IV, this evaluation shall give special consideration and precedence to protecting PFC for PTE species.

(19) "Fill" means the addition of soil, sand, rock, gravel, sediment, earth retaining structure, or other material to an area waterward of the OHWM, in wetlands, or on shorelands in a manner that raises the elevation or creates dry land.

(20) "Flood plain" is synonymous with one hundred-year floodplain and means that land area susceptible to inundation with a one percent chance of being equaled or exceeded in any given year. The limit of this area shall be based upon flood ordinance regulation maps or a reasonable method which meets the objectives of the act.

(21) "Geotechnical report" or "geotechnical analysis" means a scientific study or evaluation conducted by a qualified expert that includes a description of the ground and surface hydrology and geology, the affected land form and its susceptibility to mass wasting, erosion, and other geologic hazards or processes, 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 down-current properties. 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 shoreline geology and processes.

(22) "Grading" means the movement or redistribution of the soil, sand, rock, gravel, sediment, or other material on a site in a manner that alters the natural contour of the land.

(23) "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))) (24) "In-stream structure" means a structure placed by humans within a stream or river waterward of the bank full width that either causes or has the potential to cause water impoundment or the diversion, obstruction, or modification of water flow. In-stream structures may include those for hydroelectric generation, irrigation, water supply, flood control, transportation, utility service transmission, fish habitat enhancement, or other purpose.

(25) "Lacustrine" means pertaining to a lake.

(26) "Letter of exemption" means a letter or other official certificate issued by a local government to indicate that a proposed development is exempted from the requirement to obtain a shoreline permit as provided in WAC 173-27-050. Letters of exemption may include conditions or other provisions placed on the proposal in order to ensure consistency with the Shoreline Management Act, this chapter, and the applicable master program.

(27) "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))) (28) "Marine" means pertaining to tidally influenced waters, including oceans, sounds, straits, marine channels, and estuaries.

(29) "May" means the action is acceptable, provided it conforms to the provisions of this chapter.

(30) "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, with (a) of this subsection being top priority.

(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;

(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.

(31) "Must" means a mandate; the action is required.

(32) "Nonpoint pollution" means pollution that enters any waters of the state from any dispersed land-based or water-based activities, including, but not limited to, atmospheric deposition, surface water runoff from agricultural lands, urban areas, or forest lands, subsurface or underground sources, or discharges from boats or marine vessels not otherwise regulated under the National Pollutant Discharge Elimination System program.

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

(34) "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 or wildlife density;

• Comparatively high fish or wildlife species diversity;

• Important fish or wildlife breeding habitat;

• Important fish or wildlife seasonal ranges;

• Important fish or wildlife movement corridors;

• Rearing and foraging habitat;

• Refugia habitat;

• 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 or 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 a consolidated marine/estuarine shoreline, talus slopes, caves, snags) of key value to fish and wildlife. A priority habitat may contain priority and/or nonpriority fish and wildlife.

(35) "Priority species" means species requiring protective measures and/or management guidelines to ensure their persistence at genetically viable population levels. Priority species are those that meet any of the criteria listed below.

(a) Criterion 1. State-listed or state proposed 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 proposed 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.

(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 colonies, 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 federal Endangered Species Act as either proposed, threatened, or endangered.

(36) "Properly functioning condition" or "PFC" means conditions that create and sustain natural habitat-affecting processes (such as sediment routing, riverine community succession, precipitation runoff patterns, a natural range of flow variability and channel migration) over the full range of environmental variation and that support productivity at a viable population level of PTE species. The term "properly functioning condition" indicates a level of performance for a subset of the more broadly defined "ecological functions," reflecting what is necessary for the recovery of PTE species.

(37) "Proposed, threatened, and endangered species" or "PTE species" means those native species that are proposed to be listed or are listed in rule by the Washington state department of fish and wildlife pursuant to RCW 77.12.020 as threatened (WAC 232-12-011) or endangered (WAC 232-12-014), or that are proposed to be listed as threatened or endangered or that are listed as threatened or endangered under the federal Endangered Species Act, 16 U.S.C. 1533.

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

(39) "Restoration" or "ecological restoration" means the significant upgrading of ecological shoreline functions through measures such as revegetation, removal of intrusive shoreline structures and removal or treatment of toxic materials.

(40) "Restore" means to significantly upgrade shoreline ecological functions through measures such as revegetation, removal of intrusive shoreline structures, and removal or treatment of toxic sediments.

(41) "Riverine" means pertaining to a river system, including associated lakes and wetlands.

(42) "Shall" means a mandate; the action must be done.

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

(44) "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))) (45) "Shoreline modifications" 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, pier, weir, dredged basin, fill, bulkhead, or other shoreline structures. They can include other actions, such as clearing, grading, or application of chemicals.

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

(47) "Should" means that the particular action is required unless there is a demonstrated, compelling reason, based on policy of the Shoreline Management Act and this chapter, against taking the action.

(48) "Significant ecological impact" means an effect or consequence of an action if any of the following apply:

(a) The action measurably or noticeably reduces or harms an ecological function or ecosystem-wide process.

(b) Scientific evidence or objective analysis indicates that the action could cause reduction or harm to those ecological functions or ecosystem-wide processes described in (a) of this subsection under foreseeable conditions.

(c) Scientific evidence indicates that the action could contribute to a measurable or noticeable reduction or harm to ecological functions or ecosystem-wide processes described in (a) of this subsection as part of cumulative impacts, due to similar actions that are occurring or are likely to occur.

(49) "Significant vegetation removal" means the removal or alteration of native trees, shrubs, and/or ground cover by clearing, grading, cutting, burning, chemical means, or other activity that causes significant ecological impacts to functions provided by such vegetation. The removal of invasive or noxious weeds does not constitute significant vegetation removal. Tree pruning, not including tree topping, where it does not affect ecological functions, does not constitute significant vegetation removal.

(50) "Site potential tree height" means the average height, at age one hundred years, of the tallest mature native tree 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.

(a) 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.

(b) 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.

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

(52) "Storm water" means that portion of precipitation that does not normally percolate into the ground or evaporate but flows via overland flow, interflow, channels, or pipes into a defined surface water channel or constructed infiltration facility.

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

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

(b) The degrading action may cause damage or harm to shoreline ecological functions under foreseeable conditions; or

(c) Scientific evidence indicates that the action may contribute to damage or harm to ecological functions as part of cumulative impacts.

(54) "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 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, surface water intake, and sewer outfalls.

(55) "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 location, design, and operation ensures 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.

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

(57) "Water quality" means the physical characteristics of water within shoreline jurisdiction, including water quantity, hydrological, physical, chemical, aesthetic, recreation-related, and biological characteristics. Where used in this chapter, the term "water quantity" refers only to development and uses regulated under this chapter and affecting water quantity, such as impermeable surfaces and storm water handling practices. Water quantity, for purposes of this chapter, does not mean the withdrawal of ground water or diversion of surface water pursuant to RCW 90.03.250 through 90.03.340.

(58) "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) The use has 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 uses and the proximity of the use to its customers makes its services less expensive and/or more convenient.

Water-related uses include manufacturing of ship parts large enough that transportation becomes a significant factor in the product's cost, professional services serving primarily water-dependent uses, and storage of water-transported foods. Other examples of water-related uses 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 upland log storage for water-borne transportation.

In addition, the definitions and concepts set forth in RCW 90.58.030, as amended, and implementing rules 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.]

(1) Local governments shall develop new or amended master programs according to this chapter.

(2) Parts III and IV of this chapter are distinct and separate methods for developing new or amended master programs. Part III is the default path for local government submissions. Absent a declaration of intent pursuant to subsection (3) of this section, the department will review a new or amended master program submitted to the department pursuant to WAC 173-26-110 for consistency with Part III.

(3) At any time prior to submittal to the department of a new or amended master program pursuant to WAC 173-26-110, a local government may provide written notice to the department declaring that its submission has been or will be developed according to Part IV. Upon receipt of such a declaration, the department will review the submitted master program for consistency with Part IV.

(4) A local government who has declared its intention to proceed under Part IV may, at any time prior to approval by the department, revert to Part III by providing written notice to the department.

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GUIDELINES -- DEFAULT APPROACH
NEW SECTION
WAC 173-26-170
Purpose of Part III.

(1) Objectives.

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 the act for regulation of uses of the shorelines; and to provide criteria to local governments and the department in developing and amending master programs. The purposes of Part III are to: (Text in quotations is excerpted from RCW 90.58.020.)

(a) Protect against adverse impacts.

"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. . . ."

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

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).)

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."

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

"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."

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

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."

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."

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

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:

"(i) Single-family residences and their appurtenant structures;

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

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

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

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.

"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."

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

(d) Protection and restoration of ecological functions.

This chapter captures the resource protection and restoration policy of RCW 90.58.020 within the concept of protection and restoration of ecological functions. The relative state of ecological functions in a species' range or habitat has a dramatic effect on the general health of the state's native vegetation, wildlife, and fish. Some native species remain vigorous, while others have declined over the years. Local governments with proposed, threatened, or endangered species within their jurisdiction should consider the needs of such species when drafting master program provisions intended to protect and restore ecological functions.

(2) Responsibilities of state and local governments.

RCW 90.58.050 gives local governments the responsibility of initiating the planning required by the Shoreline Management Act and administering the regulatory program consistent with its policy and provisions. 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.

[]

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.

[]

(1) Master program concepts.

The following four concepts are the basis for effective shoreline master programs.

(a) Master program policies and regulations.

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 planning and regulatory measures for adjacent land. For jurisdictions planning under chapter 36.70A RCW, the Growth Management Act, the requirements for integration of shoreline and adjacent land planning are more specific and are described in WAC 173-26-190 (2)(a). Fourth, master programs address conditions and opportunities of specific shoreline segments by classifying the shorelines into "environment designations" as described in WAC 173-26-210.

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. A local government evaluates a permit application with respect to the shoreline master program policies and regulations and issues a permit only after determining that the development conforms to them. The regulations apply to all uses and development 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:

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

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

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

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

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

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

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

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

(i) 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. Local jurisdictions are not required to address the master program elements listed in the Shoreline Management Act as discrete sections. The elements may be addressed throughout master program provisions rather than used 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 by setting use priorities and requiring "optimum implementation" of the act's policy. WAC 173-26-250 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 sets of environment protection measures, allowable use provisions, and development standards for each of these shoreline segments.

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.

(2) Basic requirements.

Part III of this chapter describes the basic components and content required in a master program. Part III also contains suggestions for fulfilling the requirements which local governments may or may not choose to follow.

For this chapter, the terms "shall," "must," and "are required" and the imperative voice mean a mandate; the action must be done. As noted in WAC 173-26-020, the term "should" means that the particular action is required unless there is a demonstrated, compelling reason, based on a policy of the Shoreline Management Act and this chapter, against taking the action. 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 chapter 36.70A RCW 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. The department may develop recommendations for land use control for such lands. Local governments shall, in developing use regulations for such areas, take into consideration any recommendations developed by the department as well as any other state agencies or units of local government [1971 ex.s. c 286 § 34.]

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.

(A) First, WAC 173-26-190 (2)(b) and (c) describe optional methods to integrate master programs and other development regulations and the local comprehensive plan.

(B) Second, WAC 173-26-220 through 173-26-250 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.

(C) 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 ensure that local master programs are consistent with other regulations.

Shoreline master programs may include other regulations by referencing a specific, dated edition. When including referenced regulations within a master program, local governments shall ensure that the public has an opportunity to participate in the formulation of the regulations or in their incorporation into the master program, as called for in WAC 173-26-200 (3)(b)(i). In the approval process, the department will review the referenced development regulation sections 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 will require 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 rather than preparing a discrete master program in a single document. Master program provisions that are integrated into such plans and development regulations shall be clearly identified so that the department 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 or the applicable 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 to the department a listing and copies of all provisions that constitute the master program. The master program shall also be sufficiently complete and defined to provide:

(i) Clear directions to applicants applying for shoreline permits; and

(ii) 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.

Place illustration here.

(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 and efficiently manage natural resources, such as drift cells or watersheds, 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.

(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, 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 master program policies are considered a shoreline element of the local comprehensive plan and shall also be consistent with the planning goals of RCW 36.70A.020.

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 173-26-210. 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.

(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 that apply to specific environments consistent with WAC 173-26-210.

(C) Include general regulations, use regulations that address issues of concern to specific uses, and shoreline modification regulations that protect shoreline ecological functions from the effects of human-made modifications to the shoreline.

(iii) Administrative provisions.

(A) Statement of applicability.

The Shoreline Management Act's provisions apply to all development and uses within its jurisdiction, whether or not a shoreline permit is required. Local governments have the authority to condition a project even though it is exempt from the requirement for a substantial development permit. There has been, historically, some public confusion regarding the Shoreline Management Act's applicability. Therefore, all master programs shall include the following statement:

"All new development and uses 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.

(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.

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 173-27 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.

(D) Documentation of project review actions and changing conditions.

Master programs shall include a mechanism for documenting project review actions in shoreline areas. Local governments shall also identify a process for evaluating their cumulative effects on shoreline conditions. This process could involve a joint effort by local governments, state resource agencies, affected Indian tribes, and other parties.

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Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 173-26-200
Comprehensive process to prepare or amend shoreline master programs.

(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 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 update since original master program adoption.

(g) Monitoring and adaptive management indicate that changes are necessary to avoid loss of ecological functions.

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 fully comprehensive process.

All master program amendments, even amendments that do not fit within the criteria above, are subject to approval by the department.

(2) Basic concepts 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.

To address the requirements for the use of scientific and technical information, local governments shall incorporate the following two steps into their master program development and amendment process.

First, identify and assemble the most current, accurate, and complete scientific and technical information available that is applicable to the issues of concern. The context, scope, magnitude, significance, and potential limitations of the scientific information should be considered. At a minimum, make use of and, where applicable, incorporate all available and relevant 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 use accepted scientific methods and research procedures and be subject to peer review. Local governments are encouraged to work interactively with neighboring jurisdictions, state resource agencies, and affected Indian tribes to address technical issues beyond the scope of existing information resources or locally initiated research.

At a minimum, local governments should consult with the technical assistance materials produced by the department. Unless there is more current or specific information available, those technical assistance materials shall constitute an element of scientific and technical information as defined in these guidelines.

Second, base master program provisions on an analysis incorporating the most current, accurate, and complete scientific or technical information available. Local governments should be prepared to identify the following:

(i) Scientific information and management recommendations on which the master program provisions are based;

(ii) Assumptions and information gaps in the scientific analysis;

(iii) Risks to ecological functions associated with master program provisions. Address potential risks as described in WAC 173-26-200 (3)(d).

The requirement to use scientific and technical information in these guidelines does not limit a local jurisdiction's authority to solicit and incorporate information, experience, and anecdotal evidence provided by interested parties as part of the master program amendment process. Such information should be solicited through the public participation process described in WAC 173-26-200 (3)(b). Where information collected by or provided to local governments conflicts or is inconsistent, the local government shall base master program provisions on a reasoned, objective evaluation of the relative merits of the conflicting data.

RCW 36.70A.172(1) of the Growth Management Act 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.

Accordingly, local governments shall also include best available science as defined in RCW 36.70A.172(1) and its implementing rules when developing policies and regulations for critical areas within shoreline jurisdiction.

(b) Environmental evaluation and regulatory response.

Effective shoreline management requires the evaluation of changing conditions and the modification of regulations to address identified trends and new information. Local governments are encouraged to undertake local monitoring and periodically update master program provisions to improve shoreline management practices over time.

(c) Ecological functions.

RCW 90.58.020 includes the following statement:

This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life while protecting generally public rights of navigation and corollary rights incidental thereto.

This chapter implements the above-cited policy through the protection and restoration of ecological functions. The concept of ecological functions, as defined in WAC 173-26-020, recognizes that successful management of the shoreline environment depends on sustaining the:

(i) Ecosystem-wide fluvial, current, and wave processes that form habitats, and

(ii) Individual functions and their processes that are present in each habitat type.

The loss or degradation of one or more ecosystem-wide processes or individual functions can significantly impact shoreline habitats and human health and safety. Shoreline master programs shall address the applicable ecosystem-wide processes and individual ecological functions identified in the ecological systems analysis described in WAC 173-26-200 (3)(d)(i).

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 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 protection and restoration of ecological functions generally apply to all shoreline areas, not just those that remain relatively unaltered.

Master programs shall contain provisions to protect and contribute to the restoration of ecological functions and ecosystem-wide processes based on analysis described in WAC 173-26-200 (3)(d).

(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 173-26-020, 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 protection and restoration activities. Consistent with RCW 90.58.020, local governments should, when determining allowable uses and resolving use conflicts on shorelines within their jurisdiction, apply the following preferences and priorities in the order listed below, starting with (i) of this subsection.

(i) Reserve appropriate areas for protecting and restoring ecological functions to control pollution and prevent damage to the natural environment and public health.

(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 restoration objectives. Harbor areas and areas that are generally considered navigable for commercial purposes should be reserved for water-dependent and water-related uses unless the local governments can demonstrate that adequate shoreline is otherwise reserved for future water-dependent and water-related uses. 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) Reserve shoreline areas for water-related and water-enjoyment uses that are compatible with water-dependent uses and ecological protection and restoration objectives.

(iv) Locate single-family residential uses where they are appropriate and can be developed without significant impact to ecological functions or displacement of water-dependent uses.

(v) Limit nonwater-oriented uses 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 undeveloped shoreline may not be an appropriate site for a water-dependent use, such as a cargo facility, but may accommodate a recreational trail (water-enjoyment) of a lower priority.

For shorelines of state-wide significance, apply the preferences as indicated in WAC 173-26-250(2).

(e) Environmental impact mitigation.

Because the Shoreline Management Act recognizes both the appropriate use and environmental protection of the state's shorelines, situations may arise in which otherwise allowable development must include measures to mitigate environmental impacts and implement the Shoreline Management Act's environmental protection objectives. Rules implementing Washington's State Environmental Policy Act of 1971, chapter 43.21C RCW, also address environmental impact mitigation in WAC 197-11-660 and define mitigation in WAC 197-11-768. Where these guidelines call for mitigation or mitigation sequencing, shoreline master programs shall include provisions for providing environmental impact mitigation. This may be done by prescribing specific mitigation actions for specific uses as called for in WAC 173-26-240 (2)(a), by requiring conditional use permits as described in WAC 173-26-240 (2)(b), and/or by implementing a plan for comprehensive environmental mitigation.

To this end, master programs shall indicate that, where required, mitigation measures shall be applied in the sequence defined in WAC 173-26-020. In determining appropriate mitigation measures, avoidance of impacts by means such as relocating or redesigning the proposed development shall be applied first. Lower priority measures shall be applied only after higher priority measures are demonstrated to be not feasible or not applicable.

(3) Steps in preparing and amending a master program.

(a) Process overview.

Figure 4 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 to the process, or work jointly with other jurisdictions or regional efforts, provided the provisions of this chapter are met.

Place illustration here.

The department 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.

(b) Participation process.

Establish a 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 the full range of interests of all citizens within the local jurisdiction.

(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 for a list of applicable agencies to be notified.

(iii) Communication 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.

At a minimum, gather and incorporate all pertinent and available information, existing inventory data and materials from state agencies, affected Indian tribes, watershed management planning, and other appropriate sources. Ensure that, whenever possible, inventory methods and protocols are consistent with those of neighboring jurisdictions and state efforts. Contact the department to determine information sources and other relevant efforts.

Local governments shall be prepared to demonstrate how the inventory information was used in preparing their local master program amendments.

Collection of additional inventory information is encouraged and should be coordinated with other watershed, regional, or state-wide inventory and planning efforts in order to ensure consistent methods and data protocol as well as effective use of fiscal and human resources. Local governments should be prepared to demonstrate that they have coordinated with applicable interjurisdictional shoreline inventory and planning programs where they exist. Two or more local governments are encouraged to jointly conduct an inventory in order to increase the efficiency of data gathering and comprehensiveness of inventory information. Data from interjurisdictional, watershed, or regional inventories may be substituted for an inventory conducted by an individual jurisdiction, provided it meets the requirements of this section.

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

(i) Shoreline and adjacent land use patterns and transportation facilities, including the extent of existing structures, impervious surfaces, and vegetation and shoreline modifications in shoreline jurisdiction.

(ii) Critical areas, including wetlands, aquifer recharge areas, critical wildlife habitats, geologically hazardous areas, and frequently flooded areas, as required by RCW 36.70.170.

(iii) Degraded areas and sites with ecological restoration potential.

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

(v) Conditions and regulations in shoreland and adjacent areas that affect shorelines, such as surface water management and land use regulations. This information may be useful in achieving mutual consistency between the master program and other development regulations.

(vi) Existing and potential shoreline public access sites, including public rights-of-way.

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

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

(ix) If the shoreline is rapidly developing or subject to substantial human changes such as clearing and grading, past and current records or historical 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.

(x) 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.

(d) Analyze shoreline issues of concern.

Analyze shoreline conditions based on information gathered in (c) of this subsection 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, addressing the topics below, where applicable.

(i) Shoreline ecological systems.

Prepare a characterization of shoreline ecological systems. These systems include riverine, lacustrine, and tidal systems as listed in WAC 173-26-020. The characterization consists of three steps:

(A) Identify which of the ecosystem-wide processes and ecological functions listed in WAC 173-26-020 apply within the shoreline jurisdiction and identify which have been significantly altered and which may be missing or significantly impacted;

(B) Assess the ecosystem-wide processes to determine their effect/impact on shoreline systems present within a jurisdiction and their individual functions; and

(C) Develop the specific master program provisions necessary to protect and/or restore ecological functions and ecosystem-wide processes. The characterization may be achieved by using one or more of the approaches below:

(I) If a regional environmental management plan, such as a watershed plan and limiting habitat factors analysis, is ongoing or has been completed, then conduct the characterization either within the framework of the regional plan or use the data provided in the regional plan. This methodology is intended to provide an in-depth and comprehensive assessment and characterization.

(II) If a regional management plan has not been completed, use available scientific and technical information, including flood studies, habitat evaluations and studies, water quality studies, and data and information from environmental impact statements. This characterization of ecosystem-wide processes and the impact upon the functions of specific habitats and human health and safety may be of a generalized nature.

(III) One or more local governments may pursue a characterization which includes a greater scope and complexity than listed in items (I) and (II) of this subsection.

Local governments should ensure that master program provisions protect the shoreline processes within the subject jurisdiction that are critical to creating and sustaining the widest range of shoreline functions. To achieve this, the level of resource protection must account for risks to the environment and incremental impacts from development allowed by the master program. Local governments should use this analysis to prepare master program provisions to protect and contribute to the restoration of the ecosystem-wide processes and individual ecological functions on a comprehensive basis over time. This does not necessarily require that each development or action on the shoreline individually improves ecological functions.

(ii) Shoreline use analysis and priorities.

Conduct an analysis to determine the future demand for shoreline space and the 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 WAC 173-26-200 (2)(d) and 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 ecological restoration.

(iii) Cumulative impacts.

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. This assessment should include potential impacts due to all development, including current conditions and those uses not requiring a shoreline permit. Master programs should address cumulative adverse impacts caused by incremental development, such as residential bulkheads, residential piers, or runoff from newly developed properties, and shall include master program provisions to assess, minimize, and mitigate cumulative impacts.

(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) Public access.

Identify public access needs and opportunities within the jurisdiction and explore actions to enhance shoreline recreation facilities, as described in WAC 173-26-220(4).

(vi) Enforcement and coordination with other regulatory programs.

Local governments planning under the Growth Management Act shall review their comprehensive plan policies and development regulations to ensure mutual consistency. In order to effectively administer and enforce master program provisions as well as other development regulations, local governments should also review their current permit review and inspection practices to identify ways to increase efficiency and effectiveness and to ensure consistency.

(vii) Water quality.

Identify water quality and quantity issues relevant to master program provisions, including those that affect human health and safety. At a minimum, consult with appropriate federal, state, tribal, and local agencies.

(viii) Vegetation conservation.

Identify how existing shoreline vegetation provides ecological functions and determine methods to ensure protection of those functions. Identify important ecological functions that have been degraded through loss of vegetation and feasible means to restore those functions. Consider the amount of vegetated shoreline area necessary to achieve ecological objectives. While there may be less vegetation remaining in urbanized areas than in rural areas, the importance of this vegetation, in terms of the ecological functions it provides, is often as great or even greater than in rural areas due to its scarcity.

(ix) Special area planning.

If the jurisdiction includes complex shoreline ecological issues, changing uses, or other unique features, the local government is encouraged to undertake special area planning. Special area planning may be used to address: Public access, vegetation conservation, shoreline use compatibility, port development master planning, ecological restoration, or other issues best addressed on a comprehensive basis.

The resultant plans may serve as the basis for facilitating state and local gove