WSR 03-13-108

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 03-02 -- Filed June 17, 2003, 3:25 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-03-019.

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

     Purpose: New Shoreline Management Act (SMA) guidelines for development/amendment of master programs, to implement statutory requirements to update the guidelines consistent with SMA policy, replacing Parts 3 and 4 of chapter 173-26 WAC which were invalidated after administrative review. Among other things, these rules establish planning and regulatory definitions and standards for future shoreline development and uses, requirements for protection and restoration of shoreline ecological functions, guidance on the limitations of regulatory authority and guidance on shorelines and Growth Management Act integration. The following sections of chapter 173-26 WAC will be repealed and replaced with new rule language: WAC 173-26-170 through 173-26-350. Existing Part V Ocean Management is proposed to remain unchanged, but relabeled as Part IV of chapter 173-26 WAC.

     Statutory Authority for Adoption: Chapter 90.58 RCW and specifically RCW 90.58.060.

     Statute Being Implemented: Chapter 90.58 RCW and specifically RCW 90.58.020, [90.58].050, and [90.58].060.

     Summary: The proposed rule provides updated guidance for local governments and the department in developing and amending local shoreline master program policies and regulations. The local government shoreline master programs, the SMA, and these guidelines identify requirements and strategies for regulation of development, uses and activities in shoreline areas throughout the state, implementing the policies and requirements of the SMA.

     Reasons Supporting Proposal: The 1995 legislature directed ecology to periodically review and adopt new guidelines consistent with SMA policy and integrate shorelines and growth management plans and development regulations. Updated guidelines will provide direction to local governments, the state and its citizenry in implementing the SMA. The shoreline guidelines have not been comprehensively updated since original adoption over thirty years ago. New guidelines are needed to recognize: Advancements in science regarding how shorelines should be managed, changes in law, the character of shoreline development and innovations in shorelines and growth management practice.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Peter Skowlund, Ecology Headquarters, Lacey, (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: Proposed new guidelines are being developed to recognize changes in shoreline management law, science and land use practice. The new guidelines will be implemented as local governments update their local shoreline master programs to comply with deadlines established in statute adopted by the 2003 legislature. Updated shoreline master programs will provide updated standards for public and private construction and location of structures, uses and activities in shoreline areas, including 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 the surface waters of the state. The new guidelines will apply to water areas, associated wetlands and adjacent uplands that are subject to the Shoreline Management Act.

     Proposal Changes the Following Existing Rules: Yes, the proposal will change existing rules. It is proposed to repeal the existing Parts III and IV of chapter 173-26 WAC (which were declared invalid in part by the Shorelines Hearings Board) and to replace them with new rule language proposed by the department. Existing Part V, Ocean Management, is also proposed to be relocated (to be labeled as Part IV), unchanged.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

     EXECUTIVE SUMMARY: The Department of Ecology is proposing adoption of new Shoreline Management Act (SMA) guidelines. These guidelines provide procedural and substantive directions for local governments that are subject to the Shoreline Management Act as they review and update Shoreline master programs. As a result of an agreement with various stakeholders, ecology is developing and issuing this draft small business economic impact statement (SBEIS) under RCW 19.85.030 to accompany this rule adoption. After review and comment by interested persons, ecology will issue a final SBEIS and use the information developed by the SBEIS as required by law to ensure that the proposed rules are consistent with legislative policy.

     The objective of this SBEIS is to identify and evaluate the various requirements and costs that the proposed rule might impose on business. In particular, the SBEIS studies whether the costs on business that might be imposed by the proposed rule impose a disproportionate impact on the state's small businesses.

     The Shoreline Management Act guidelines being considered for adoption are, most directly, rules for local government to follow when developing a local shoreline master program. As the term is defined by RCW 19.85.020, no "business" is required to comply with any direct requirement of these guidelines. The guidelines are directed at local governments who are reviewing the condition of their shorelines and who will be adopting updated SMPs to be consistent with the guidelines. Accordingly, the guidelines do not directly regulate development and use of the shorelines; the regulations of the local government in the SMP regulate development and use of the shorelines. The guidelines of course provide minimum standards for the local shoreline master programs and therefore have an indirect regulatory effect, which this SBEIS will evaluate.

     This SBEIS first analyzes particular industries to evaluate the costs imposed by the proposed rule. The SMA guidelines could indirectly affect many industries, but several are more likely to be affected than others. This SBEIS addresses the following general business areas as a basis for characterizing costs imposed on business and whether there is a disproportionate cost placed on small businesses:

•     Development and construction businesses,

•     Shoreline stabilization contractors,

•     Agriculture,

•     Mining,

•     Marine transportation (e.g. marinas, ferries, etc.).

     All industry categories listed above could be affected by the proposed rule through increased compliance costs associated with increased shoreline investigation, monitoring and mitigation. This would include the costs associated with engineers, biologists, and other professional services that are required to be retained as part of an increased emphasis on shoreline assessment and no net loss of ecological function. These increased costs will be borne by both small and large firms to the extent that both these types of firms work in shoreline areas. Some of these additional costs will likely be passed along to the purchasers of developed land or the owners of projects on which contractors are working which will reduce the direct impact on these industries.

     Assessing disproportionate impacts is made difficult due to lack of available data, which in part reflects the indirect nature of how the guidelines affect local government regulation which in turn may affect businesses. In general, it is reasonable to assume that assessment/mitigation costs are going to be related to the size of a project undertaken. In the case of developers, the mining industry and marine transportation, these costs should vary with the size of the parcels developed. If larger firms tend to utilize larger parcels, then the assessment costs will tend to be more proportional than if all firms utilize the same size parcels. Existing data of a wide variety of industrial classifications in two counties indicate that larger firms do tend to utilize larger parcels, but on a "per employee" basis, the reverse is true; smaller firms utilize more land/employee. For purposes of analysis, this SBEIS conservatively evaluates this data to suggest that compliance costs may be disproportionate.

     A second potential impact that may be imposed on businesses in the shoreline is reductions in land value that is possible from increased shoreline land use restrictions. To analyze whether a typical regulation would have an effect on businesses, a hypothetical scenario was constructed involving the imposition of a vegetative buffer which would reduce the amount of useable land for any shoreline owner by 10%. To analyze the impact of this hypothetical type of land use restriction, shoreline ownership data was obtained for two counties to evaluate land ownership in detail. Data for King and Yakima counties were considered, and it was found that, smaller firms utilize larger parcels on a per employee basis. The results of this analysis indicate that the disproportionate cost impact of a hypothetical land use restriction between small and large firms will be between eight and eleven times in King County and two and four times in Yakima County (It should be emphasized that this analysis is offered in order to detect the potential for disproportionate impact. This analysis, however, is not intended to demonstrate that the SMA guidelines in fact reduce any land values.)

     The draft regulations include several provisions that may mitigate any disproportionate effects of these regulations. These include:

•     A requirement that the guidelines assure compliance with all constitutional and statutory limitations on the regulation of private property.

•     Guideline design that allows for flexibility in SMP development and mitigation requirements that allow for a wide variety of alternatives.

•     An implementation schedule for these guidelines allowing local government up to eleven years to develop and adopt master programs providing a substantial amount of time for complying businesses to adapt.

•     Provisions for conditional uses and variances providing regulatory flexibility to adjust requirements.

•     Promotion of alternative approaches to shoreline development that will mitigate the impacts of guideline requirements on some firms.

     Introduction: The Department of Ecology is proposing adoption of new Shoreline Management Act (SMA) guidelines. These guidelines provide procedural and substantive directions for the local governments that are subject to the Shoreline Management Act ("the act" or "the SMA") as they review and update shoreline master programs ("SMPs"). The act requires ecology to periodically review and amend the existing guidelines for SMPs that implement the act. In particular, updating the guidelines and shoreline master programs was directed by the legislature in 1995 amendments of RCW 90.58.060.

     Broadly stated, the goals of adopting the proposed guidelines include:

•     Complying with the legislative mandate in RCW 90.58.060.

•     Updating the former guidelines to bring them into conformance with the intent and language of the Act and with current practices and information relevant to shoreline management.

     As a result of an agreement with various stakeholders, ecology is developing and issuing this draft small business economic impact statement (SBEIS) under RCW 19.85.030 to accompany this rule adoption. After review and comment by interested persons, ecology will issue a final SBEIS and use the information developed by the SBEIS as required by law to ensure that the proposed rules are consistent with legislative policy.

     Objective of the SBEIS: The objective of this SBEIS is to identify and evaluate the various requirements and costs that the proposed rule might impose on business. In particular, the SBEIS examines whether the costs on business that might be imposed by the proposed rule impose a disproportionate impact on the state's small businesses. This is consistent with the legislative purpose of the Regulatory Fairness Act, chapter 19.85 RCW, and is set out in RCW 19.85.011:

     "The legislature finds that administrative rules adopted by state agencies can have a disproportionate impact on the state's small businesses because of the size of those businesses. This disproportionate impact reduces competition, innovation, employment, and new employment opportunities, and threatens the very existence of some small businesses. The legislature therefore enacts the Regulatory Fairness Act with the intent of reducing the disproportionate impact of state administrative rules on small business."

     The specific purpose and required contents of the SBEIS is contained in RCW 19.85.040. (The bracketed numbers and emphasized words are for the reader's convenience, and reflect some of the organization of this draft SBEIS.)

     "(1) A small business economic impact statement must include [1] a brief description of the reporting, record keeping, and other compliance requirements of the proposed rule, and [2] the kinds of professional services that a small business is likely to need in order to comply with such requirements. [3] It shall analyze the costs of compliance for businesses required to comply with the proposed rule adopted pursuant to RCW 34.05.320, including costs of equipment, supplies, labor and increased administrative costs. [4] It shall consider, based on input received, whether compliance with the rule will cause businesses to lose sales or revenue. [5] To determine whether the proposed rule will have a disproportionate impact on small businesses, the impact statement must compare the costs of compliance for small businesses with the cost of compliance for the ten percent of businesses that are the largest businesses required to comply with the proposed rules using one or more of the following as a basis for comparing costs:

     a. Cost per employee

     b. Cost per hour of labor

     c. Cost per hundred dollars of sales

     (2) A small business economic impact statement must also include:

     a. [6] A statement taken by the agency to reduce the costs of the rule on small businesses as required by RCW 19.85.030(3), or reasonable justification for not doing so, addressing the options listed in RCW 19.85.030(3).

     b. [7] A description of how the agency will involve small business in the development of the rule; and

     c. [8] A list of industries that will be required to comply with the rule. However, this subsection (2)(c) shall not be construed to preclude application of the rule to any business or industry to which it would otherwise apply."

     For purposes of an SBEIS, the terms "business," "small business," and "Industry" are defined by RCW 19.85.020. "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, that has the purpose of making a profit, and that has fifty or fewer employees. "Industry" means all of the businesses in this state in any one four-digit standard industrial classification as published by the United States Department of Commerce.

     After summarizing the requirements and content of the proposed rule, this SBEIS will address the required elements of an SBEIS in the following order:

     Part 1 - This section provides [1] a brief description of the reporting, record keeping, and other compliance requirements of the proposed rule, [2] the kinds of professional services that a small business is likely to need in order to comply with such requirements, [3] the costs of compliance for businesses required to comply with the proposed rule including costs of equipment, supplies, labor and increased administrative costs, and [4] whether compliance with the rule will cause businesses to lose sales or revenue.

     Part 2 - This section evaluates [5] whether the proposed rule will have a disproportionate impact on small businesses.

     Part 3 - This section includes [5] an analysis of a hypothetical scenario to determine if the guidelines might disproportionately impact small businesses located in shoreline areas by comparing the costs of compliance for small businesses with the cost of compliance for businesses that are the largest businesses.

     Part 4 - This section considers [6] actions taken to reduce the impact of the rule on small business.

     Part 5 - This section describes [7] how small business was involved in the development of the rule.

     Part 6 - This section provides [8] a list of industries required to comply with the rule.

     Overview of the Shoreline Management Act and the Proposed Guidelines for Shoreline Master Programs: The Shoreline Management Act requires and authorizes a cooperative program between state and local government to plan for and regulate the uses of the shorelines of the state. The term shoreline is fully defined by RCW 90.58.030 and generally includes all lands covered by marine waters, rivers and streams greater than twenty cubic feet per second and ponds greater than twenty acres, and lands within two hundred feet of the ordinary high water mark of those water bodies, and associated wetlands and flood plains.

     Under the act, local government has the primary responsibility for conducting the required planning and for administration of the local plan and development regulations. This is known as the local "shoreline master program" or SMP, once the SMP is adopted by local government and approved by ecology. State government, acting through the Department of Ecology, provides technical assistance and oversight to assure that the policies of the act are carried out. A primary responsibility of ecology is the adoption of rules to guide the development or updating of local shoreline master programs, and to provide the standards by which ecology will subsequently approve those programs.

     In 1972 the Department of Ecology adopted chapter 173-16 WAC, which set the initial guidelines for development of local shoreline master programs. Under the SMA, each city or county with "shorelines" as defined by the act must adopt a shoreline master program (SMP) that is consistent with the act and with ecology guidelines. Each city and county, within these sideboards, is then authorized to tailor their SMP to their specific needs.

     As a land use plan, SMP's contain both a planning element and specific development regulations. The planning element identifies how the local government plans for the future development and uses of particular shorelines - such as defining whether an area is planned for commercial, residential, or urban uses. The regulatory elements provide implementing regulations that limit development and uses consistent with the plan for an area.

     As noted above, the SMA itself defines the scope of the act in terms of all marine waters, streams with flows of greater than twenty CFS, lakes larger than twenty acres and upland areas two hundred feet landward (shorelands), associated wetlands and some or all of one hundred year floodplains. The proposed guidelines do not alter these statutorily established limits and requirements regarding where the SMA must be applied.

     One of the key implementing provisions of the SMA is the permit system it establishes for construction and development activities, which fall within the definition of "substantial development," and the requirements the SMA provides for notice and public comment opportunities on such substantial development. The act also requires that local government establish a system for review of variances that function like a permit process. Variances allow for consideration of reasonable exceptions from the applicability of the provisions of an SMP where its application is disproportionately burdensome based on specific circumstances.

     Finally, the SMA allows local governments to create conditional uses within its master program which require a conditional use permit to be approved. This allows consideration of uses that (in the absence of appropriate conditions) may or may not be consistent with the master program depending on the specific elements of the project and site. All conditional use permits and all variances issued and approved by the local government must also be approved by ecology to be valid. The provisions of the permit system are set in statute and are not altered by the proposed guidelines.

     The local master program is a comprehensive land use regulation for the shoreline and applies to all uses and developments whether or not a statutorily established permit is required.

     In 1995 the legislature amended the SMA to direct ecology to review and adopt new guidelines for local master programs. The department initiated a process (itemized in Appendix A) that resulted in the guidelines currently being considered for adoption. The purpose of this SBEIS is to focus on the potential incremental impacts to small business associated with adoption of updated guidelines, and to ensure that feasible and legal steps have been taken to reduce disproportionate costs that the rules would impose on small businesses.

     Part 1 - Analyzing the Costs Imposed on Businesses: The Shoreline Management Act guidelines being considered for adoption are, most directly, rules for local government to follow when developing a local shoreline master program. As the term is defined by RCW 19.85.020, no "business" is required to comply with any direct requirement of these guidelines. The guidelines are directed at local governments who are reviewing the condition of their shorelines and who will be adopting updated SMPs to be consistent with the guidelines. Accordingly, the guidelines do not directly regulate development and use of the shorelines; the regulations of the local government in the SMP regulate development and use of the shorelines. The guidelines of course provide minimum standards for the local shoreline master programs and therefore have an indirect regulatory effect, which this SBEIS will evaluate.1

     As land use rules, the primary effect of the master programs that result from the proposed guidelines will be on the development of new uses or facilities or expansion of existing uses or facilities. While local master programs may vary, with few exceptions existing uses are not required to change unless they propose to expand or otherwise redevelop their property. Thereby one primary group of businesses that could be affected by the guidelines and SMPs that comply with the guidelines is the development and construction industry in general, and particularly those segments of the industry that specialize in shoreline related development.

     Other businesses likely to be affected by SMPs adopted in accordance with these guidelines are businesses that mine, dredge or otherwise move earth in the shorelines as a part of their operation. This is because the SMA definition of "development" includes these activities and therefore the ongoing operations require ongoing authorization.

     Therefore, this SBEIS first analyzes particular business areas to evaluate the costs imposed on them by the proposed rules. It addresses the following areas as a basis for characterizing costs imposed on business and whether there is a disproportionate cost placed on small business in an industry:

•     Development and construction businesses,

•     Shoreline stabilization contractors,

•     Agriculture,

•     Mining,

•     Marine transportation.

     In addition to evaluating the costs on businesses that might be indirectly affected by the requirements of the guidelines, this SBEIS also evaluates how a wide variety of businesses located in the shoreline might be affected if a particular land use regulation is imposed. It tries to evaluate whether these guidelines impose disproportionate costs on smaller businesses when considering the variety of businesses that might locate on shoreline property. This analysis is contained in Part 3 – An Analysis of Scenarios Evaluating Whether the Guidelines Could Disproportionately Affect the Variety of Businesses Located within Shorelines by Affecting Land Values.

     A Brief Description of the Reporting, Record Keeping, and Other Compliance Requirements, and the Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply, the Costs of Equipment, Supplies, Labor and Increased Administrative Costs, Whether Such Compliance will Cause Businesses to Lose Sales or Revenue: The specific compliance costs borne by small and large firms are difficult to determine. The SMA guidelines are intended to aid local jurisdictions in developing their own SMP's. Local governments then develop the specific management tools and regulations that will be imposed on the businesses within their jurisdiction. Ecology will approve the SMP; however, they will only be ensuring that the minimum standards outlined in the SMA and in the guidelines are adhered to. As such, the effect of the guidelines is likely to vary significantly depending on the type of business, the location, and on the plans of the local government. However, given the goal of no net loss of shoreline ecological functions articulated in the draft guidelines, it can be reasonably stated that shoreline development costs will rise as a result of the guidelines (although other federal and state laws arguably impose similar requirements for environmental protection). The components of these costs may include all or one of the following; increased cost of preparatory studies, site design and mitigation, reduction in usable space, and/or increased land acquisition cost due to limitations on the availability of developable land. Studies, site design and mitigation costs will be extremely variable. Increased land acquisition costs are very difficult to separate from other market factors that affect such costs.

     As discussed above, the proposed rules do not require any "business" to conduct ongoing reporting or record keeping. Nothing in the proposed rules are likely to result in increased administrative costs, or add general requirements for equipment, supplies or labor for businesses in general. The main additional costs will result from increased environmental assessment costs, reduction in revenue and/or limitations on land uses and values.

     Development Businesses: It is likely that some types of development activities will require additional investigation of potential impacts to shoreline resources as a prerequisite to approval of the project, and mitigation of those impacts which may include ongoing monitoring of the mitigation for a specific period of time to assure that it accomplishes the intended purpose. Professional services will be required for most substantial developments to conduct this investigation and prepare mitigation proposals. These would typically be scientific and technical design services. This is, however, not significantly different than the existing requirements of most current SMPs. It is similar to requirements of other laws applicable to development in shoreline areas.

     For the construction and development industry, small, common projects such as a single family residence will typically require little special investigation, if any. In this way, the act itself and the guidelines reduce impact on the smaller businesses associated with single family residence construction. Compliance with the specific requirements of the shoreline master program will be all that is required.

     Conversely, development of a large parcel of previously undeveloped land for almost any use will require a thorough investigation of the impacts to shoreline resources and development of mitigation options to address the identified impacts.

     It is unlikely that any compliance cost will result in an existing business losing revenue or sales, because the predominant effect of the guidelines is prospective planning and regulation of land use. The guidelines should affect the size or location of new or additional development and subdivisions, which could conceivably affect the extent of future potential increased revenue or sales. The guidelines have attempted to mitigate that effect by emphasizing constitutional protections for local governments to consider in updating their SMPs. However, given the overall purposes of the SMA described in RCW 90.58.020, appropriate limitations on subdivision and development are required by statute, and local SMPs have very limited potential to distinguish between small and large subdivision businesses in setting land use plans and development regulations.

     Shoreline Stabilization Contractors: Because of the nature of the jobs they do, which directly alter shoreline areas, shoreline stabilization contractors will more likely be required to secure additional professional services under the proposed guidelines. The guidelines require local master programs to include provisions that assure that where shoreline stabilization is allowed, that the specific nature of the problem (the "need") is identified and that the solution is designed to minimize interference with the ecological functions in the area being affected. Mitigation of any adverse environmental impacts will also be required. These requirements will require evaluation of the hydrology and biology of the project vicinity and engineering design that takes this evaluation into account. This will likely result in increased assessment and mitigation costs.

     Shoreline stabilization contractors may also experience a loss in sales or revenue as the new guidelines may lessen the need for shoreline stabilization and shoreline armoring at various locations.

     Agricultural Businesses: Agricultural businesses are unlikely to have any additional professional service requirements for a number of reasons. Cultivation and other customary operations of a farm that currently exists are broadly "grandfathered in" under provisions of the SMA to the extent they occur on agricultural land. The guidelines and act will not significantly affect these businesses.

     Future conversion of nonagricultural land to agriculture will require compliance with the requirements of the SMP. However, as a general matter, the guidelines do not require new or special services to assure compliance with these requirements for SMPs.

     New agricultural activities could experience a limitation on sales or revenue if useable land area is restricted adjacent to shorelines.

     Mining Businesses: Mining operations within the shoreline may require additional professional services periodically to gain authorization of a new site or for expanding the use of an existing site beyond previously authorized areas or to provide monitoring of mitigation features once authorization is granted. Depending on the setting this will most likely involve hydrological and biological analysis and engineering services to address site characteristics and project design.

     Sales or revenue should not be significantly affected by these requirements. However, any new land use restrictions developed as part of an SMP could affect future revenue.

     Water Transportation Businesses: Traditional (floating) marina businesses are unlikely to require additional services either for development of new facilities or ongoing operation. Because they are located in the water, the issues that must be addressed as a result of a new local master program are likely to parallel the requirements of existing federal and state requirements currently applicable. Professional services necessary for land side development for marinas and other water oriented transportation businesses whether associated with a floating facility or as part of a significant shoreline development would be similar to that for any development as described in the paragraph for "development businesses."

     Part 2 - Whether the Proposed Rule Will Have a Disproportionate Impact on Small Businesses: This analysis is provided to meet the guidelines of the Regulatory Fairness Act, chapter 19.85 RCW. To comply with the RFA, the SBEIS must identify potentially affected industries, define small and large businesses, and determine the compliance costs for these businesses. It then must compare the cost of compliance for small businesses with the cost of compliance for large businesses. If there turns out to be a disproportionate impact on small businesses in comparison with large businesses, the RFA requires that the costs imposed by the rule on small businesses be reduced where legal and feasible in meeting the objective of the statutes upon which the rule is based. If steps are not taken to reduce costs on small business, the agency must provide reasonable justification for not doing so.

     As noted previously, the evaluation of potentially affected industries can hypothetically extend to indirect effects on most industries in the state. To limit the speculation about indirect effects, this SBEIS reviews five types of industries as noted above, because these could be more directly affected by local regulations adopted as a result of the revised SMA guidelines. In general, the specific compliance costs are difficult to determine because the guidelines will not directly impose any specific requirements on businesses. The specific requirements will be developed by local governments and are unknown at this time. Moreover, the data necessary for determining disproportionate effects is not generally available in most cases. As such, a discussion of effects on small and large firms is provided below. Aggregate data on employment and income is provided, and a list of four-digit SIC codes is provided in Appendix A that parallels the five broad business classifications identified above.

     Development Business: As noted previously, firms that are currently involved in subdividing and other land development activities may be required to perform increased environmental assessment, monitoring and mitigation activities as a result of the revised guidelines. The additional compliance costs associated with these increased requirements will be for direct professional services for such occupations as engineers, surveyors, geologists, and biologists. The specific increase will be based on the magnitude of the work to be performed (i.e. larger projects will likely require more assessment/mitigation and therefore are likely to cost more).

     Industry data indicates that there are three hundred sixty nine firms in SIC 6552 "Subdividers and Developers" in Washington state with total employment of 2,083.2 These are firms engaged in subdividing real property and developing it for resale on their own account. Of these firms, five would be considered "large" firms (i.e. have at least fifty employees). The industry as a whole had gross income of approximately $393 million in 2001.3

     The ability of developers to pass these increased costs along to the purchasers of developed properties will depend on purchaser preferences for shoreline parcels and the prices of other properties available. To the extent that all identical shoreline properties will likely require additional assessment, and in cases with shoreline dependent industries, it is likely that much of the compliance costs could be passed along in the form of increased land prices. In cases where other nonshoreline properties are viable alternatives for prospective purchasers, only a portion of the increased compliance cost will likely be passed along. These additional costs may be borne as reduced profits either from direct costs or reduced land value. Since this will apply to most similar shoreline lots, we would not expect a change in the competitive nature of the shoreline development business.

     Assessing the disproportionality of costs on any firm in this industry is made difficult due to the lack of available data and due to the indirect nature of the potential costs. Whether such costs are disproportionate would depend on size of the development projects undertaken by small and large firms and the degree of assessment/monitoring required. If we assume that assessment and mitigation costs are correlated with parcel size, then knowing the underlying shoreline property ownership and parcel size of these firms may allow us to consider compliance costs. In the data set collected and described in Appendix C, four land development firms were listed as owners of shoreline parcels in King County and identified as development firms (SIC 6552). They are all small firms the largest of which has thirteen employees. As such, if new assessment requirements were placed on developers currently owning shoreline properties in King County, the additional costs would only affect small businesses in this industry. However, large firms are likely involved in shoreline development activities elsewhere and increased assessment costs may impact them.

     Shoreline Stabilization Contractors: Shoreline stabilization contractors will be required to obtain additional professional assistance in assessing the hydrology and biology of the vicinity in which they will work and additional engineering design services as required.

     Statewide there are three hundred eighty nine firms in SIC 1629 "Heavy Construction" with total employment of 4,095. This industry includes firms involved in all types of heavy construction other than building construction. Marine construction work listed in this category includes irrigation projects, flood control, channel construction, harbor and jetty construction, and pile driving and pier construction. Of these firms, sixteen are considered large firms. The total gross income for all firms in this industry was approximately $1,311 million in 2001.

     The additional professional costs described above would increase the cost of doing shoreline construction work. To the extent that all shoreline contractors will be required to perform increased assessment for any given location, the cost will likely be passed along to the project owner in terms of increased project costs. In that case, much of the additional costs may not be borne by shoreline contractors. However, if owners respond by reducing the amount of shoreline construction, contractors may experience reduced revenues. Moreover, revised SMP's may require facility siting in such a way as to minimize or eliminate the need for shoreline stabilization as a result of the guidelines. This could also reduce revenues for these firms.

     The extent of the disproportionality will be determined by the size of the projects that small and large firms typically engage in and the magnitude of the increased assessment/mitigation costs. If larger firms tend to do larger projects, and larger projects require more extensive assessment, then this would tend to reduce the disproportionality among firms.

     Agricultural Businesses: As noted previously, no particular increase in assessment/monitoring for agricultural land is likely to be required. However, cost impacts could be associated with any increase in land use restrictions on new agricultural endeavors (e.g. vegetative buffers, clearing restrictions, etc.)

     Statewide there are 6,056 firms in the applicable SIC Major Groups 01 and 02 (see Appendix B) with total employment of 30,831. Of these firms, sixty-six would be considered large firms. Agriculture is an important part of the state's economy, with a total value of production of $5.6 billion in 2001.

     The extent of land use restrictions in agricultural shoreline areas is an area of considerable concern. The SMA guidelines impose no additional restrictions on existing agricultural use. However, conversions to and from agriculture could be subject to increased vegetative buffers, clearing and grubbing standards, etc. The extent of the impact will be driven by the area of land located within the jurisdiction of the SMA owned by small and large firms that is to be converted, and the specific standard applied. The impact of land use restrictions is considered in a hypothetical scenario in Part 3.

     Mining Businesses: Mining businesses may experience an increase in assessment/monitoring costs associated with the new guidelines. This will include additional engineering and environmental assessment costs. The exact costs will depend on the scope of services required which will tend to depend on the size of the area to be considered and the frequency which evaluation is required.

     Statewide there are eighty-two firms in SIC 1442 "Construction Sand and Gravel" with total employment of 1,037. Of these firms, five would be considered large firms. The gross business income of these firms was $155 million in 2001.

     The ability of existing mining businesses to pass along additional compliance costs to consumers will depend on the spatial distribution of existing mining firms. If a majority of sand and gravel mines are located in the shoreline or are located far apart from one another, then it may be possible for these firms to raise their prices some to account for the increased costs. If only a small number of sand and gravel mines are located in the shoreline or they face substantial competition from nonshoreline mines, then they will have greater difficulty passing along increased costs in the form of increased prices. In this case, these firms will experience some reduction in profits. In general, for a given level of assessment costs, firms with less output would have to raise their prices more than large firms to recover these costs.

     Assessing disproportionality among these firms requires knowing about the existing spatial distribution of mines, the extent and frequency of assessment/monitoring and the relation to firm size. If assessment and monitoring costs are directly correlated to land area, then it is a question as to whether large mining firms tend to utilize larger areas. For the data described in Appendix C, only one business identified in SIC 1442 "Construction Sand and Gravel" was identified in Yakima County and it was a large firm with sixty-eight employees. A general analysis of firm size and land area is presented in Part 3.

     Water Transportation Businesses: Marinas and other water transportation facilities may be affected by the proposed guidelines, but the requirements would likely parallel the requirements for land developers in most cases.

     Statewide there are 661 firms in SIC codes 3731, 3732, and 4412-4493 with total employment of 15,426. Several of these industries contain only small firms including 4493 (marinas). The gross business income of all the firms in these categories was $2,078 million in 2001.

     If the regulations developed for most marinas and similar facilities are similar in nature, they will likely be able to pass some of the additional costs along to their customers in the form of increased fees if there are not many good substitutes for these marine transportation industries. In the case of marinas, the extent that moorage fees could be raised would be based on other opportunities customers have for moorage, out of water storage, etc. If these additional costs can be passed along, this would reduce the impact of increased assessment/monitoring costs on each industry.

     The extent of any disproportionality among firms will depend on the extent of the shoreline work they do and how it changes under the revised guidelines. Floating facilities will likely not experience any significant changes. Increased costs associated with construction of associated facilities on land will depend on the extent of the impacts. If bigger firms develop bigger projects and assessment costs are proportional to the project size, then the disproportionality is reduced. A list of existing firms in these categories found in King and Yakima County is provided in Appendix D. An analysis of hypothetical land use restrictions on these firms is included in Part 3.

     Part 3 - An Analysis of Scenarios Evaluating Whether the Guidelines Could Disproportionately Affect the Variety of Businesses Located Within Shorelines by Affecting Land Use: In addition to the compliance costs noted above, it is possible that revised environment designations and development standards could impact businesses located in the shoreline. These impacts would restrict the freedom of commercial and industrial property owners to use their land how they choose which could translate into lower property values. Addressing and ensuring a fair distribution of these potential impacts has been a significant input to developing the proposed SMA guidelines that are the subject of this SBEIS.

     In an effort to understand how this might impact property owners, ecology developed a model based on the existing distribution of nonresidential shoreline parcels in several counties. These impacts ultimately depend on whether there are "scale effects" associated with shoreline land use (i.e. do bigger firms utilize proportionately bigger shoreline lots?) If this is the case, then bigger firms will, in general, be more extensively affected by new vegetation conservation standards, setbacks, etc.

     To analyze the possible effects of changes in land use or value due to increased regulation involved development of a specific regulatory scenario. The scenario developed considered reduced land value associated with an increase in land use restrictions and is used to illustrate costs and the distribution of costs for development and redevelopment under the proposed rule. For the purposes of this study, the typical parcel considered will be located in a designated urban growth area, will not be subject to tidal overflow, not reasonably accessible for commercially navigable waters and subject to current regulations that designate the site for commercial or industrial use and that currently require a fifty foot setback.

     While several alternatives are available that would meet the requirement for assuring no net loss of shoreline ecological functions, a simple analysis can use the hypothetical imposition of a vegetative buffer requirement. The necessary width of the buffer can be determined with a reasonably thorough knowledge of the specific shoreline and vicinity, but is likely to be between one hundred and one hundred fifty feet. For any given setback or buffer size, small parcels would lose a larger percentage of their potentially useable property, but there are more methods of addressing impacts to smaller parcels that would reduce the disproportionate impact of the regulations. Therefore for this analysis, it was assumed that a 10% reduction in usable area would occur for both small and large firms. This is a reasonable scenario assuming reduced useable land will likely result from a combination of setbacks, buffers, view corridors, and space for mitigation such as stormwater facilities. The reduction in land value associated with the reduction in useable land was used as an indicator of the regulatory impact.

     It should be noted that this specific scenario may not be seen within any local jurisdiction. This scenario was created as a tool for evaluating potential impacts on business, so that ecology can use that information and ensure that the proposed rule avoids or minimizes disproportionate or unnecessary impacts. Assessment of the cost impacts to businesses necessarily involved creating this hypothetical scenario of a possible revised designation/standard within an individual jurisdiction's SMP. Under the proposed rules, however, any specific revised planning goals or development standard changes that occur will be determined by individual local governments through an extensive public involvement process.

     Scenario Evaluation: To assess the impact of increased land use restrictions, characteristics of existing small and large firms were utilized. Mean and median parcel sizes obtained for a sample of existing firms (See Appendix C) were used in the analysis to represent typical parcels affected by the new regulations. These were then subject to imposition of a vegetative buffer that restricted the use of 10% of the land area. Businesses or owners of businesses associated with these parcels were assumed to experience foregone development value since their land will be restricted by the buffer requirement.

     Calculation of a hypothetical foregone development value involved determining the value of land in the shoreline for the sample counties. It is well established that land located in shorelines immediately proximate to the water's edge command a premium in the market. Use of an unmodified average land value would ignore this effect and understate hypothetical foregone development value. Adjustments were made utilizing original analysis performed for the benefit-cost analysis (BCA). These adjusted values were then used to estimate the foregone development value.4

     In the hypothetical scenario, development or redevelopment is restricted by the establishment of vegetative buffer areas by the local municipality. The buffers will reduce the amount of useable area for each parcel by 10%. For the purpose of this analysis, it was assumed that the value of the land within the 10% reduction area falls by 10%, 35% and 75% in both counties.5 The fact that the land can no longer be used to its fullest extent reduces the value of the land to the owner or lessee.6 The degree to which this restriction places a proportionate or disproportionate burden on small firms depends on the extent of the area restricted for small and large firms. Once this is known, it is relatively easy to calculate the impacts.

     Data for King and Yakima counties were used to determine the average parcel size and the cost impacts for small and large firms. Larger firms tend to have larger parcels. However, utilizing the employment data, it can be shown that the square footage per employee falls with firm size (See Appendix C). Utilizing this information, and mean and median shoreline values for King and Yakima County,7 Table 6 was developed.

Table 6. Mean and median compliance cost per employee for alternative buffer requirements in King and Yakima County

Buffer Area Value Reduction (%) (1) Small Firm Compliance Cost ($/employee) (2) Large Firm Compliance Cost ($/employee) Ratio

(1)/(2)

Mean Values
King County
75% Reduction8 $37,650 $4,612 8. 2
35% Reduction $17,570 $2,152 8. 2
10% Reduction $5,020 $615 8. 2
Yakima County
75% Reduction $11,748 $6,013 2. 0
35% Reduction $5,482 $2,806 2. 0
10% Reduction $1,566 $802 2. 0
Median Values
King County
75% Reduction $34,761 $3,092 11. 2
35% Reduction $16,222 $1,443 11. 2
10% Reduction $4,635 $412 11. 2
Yakima County
75% Reduction $13,647 $3,171 4. 3
35% Reduction $6,369 $1,480 4. 3
10% Reduction $1,820 $423 4. 3

     As can be noted in the table, impacts, as measured by $/employee tend to be disproportionately borne by small firms. The disproportionate impact tends to be greater in more urban areas due to the types of land uses in those areas. In general, the impact on small firms in King County for this hypothetical scenario is eight - eleven times the impact on large firms. In Yakima County the impact on small firms tends to be two - four times the impact on large firms.

     Uncertainty and Qualifying Statements: The analysis above suggests that the impacts of the proposed guidelines could disproportionately impact small businesses. This result is based on the specific scenario outlined above and specific data obtained for King and Yakima counties. As such, several qualifying statements should be mentioned, some of which substantially mitigate the potential for disproportionate impact. As noted previously, the scenario developed is one possible outcome of a local jurisdiction's SMP development process. Many other outcomes are possible that could alter the results presented above. However, for any development regulation or environment designation that affects all properties the same, the conclusions listed above should hold.9 Additionally, some industries likely to be present in the shoreline are not represented in the sample data.10 As such, explicit conclusions based on data assessment for those industries cannot be formed.

     Research has suggested that requiring buffers can lead to a net increase in land values.11 That is, even though a parcel owner that is required to provide a buffer may suffer a loss, the surrounding properties might experience a gain through an increase in property values. The increased value results from greater visual and physical access to the shoreline. The existing research has been conducted on residential parcels, but it is not difficult to imagine the same could hold true in commercial areas, especially areas involved in providing services (e.g. restaurants, bars, etc.). To model this, a hypothetical scenario specifying the types of surrounding firms, employment levels, etc. would have to be created and existing spatial data would have to be obtained. This possibility was not explicitly modeled in this analysis. However, if the establishment of buffers did lead to net benefits to surrounding firms, the benefits would be disproportionately experienced by small firms for a fixed spatial distribution.12

     Part 4 - Actions Taken to Reduce the Impact of the Rule on Small Business: The draft regulations include several statements of principle that were used for drafting the guidelines. Among these is the requirement that the guidelines assure compliance with all constitutional and statutory limitations on the regulation of private property. To this end, the guidelines require that development in the shoreline is obligated only to mitigate for the impacts to the environment caused by the proposed development. This assures generally that the mitigation measures and the associated costs bear a reasonable relationship to the scale and scope of the development. The mitigation requirements are also intended to allow significant opportunity for creative approaches and a wide variety of alternatives so that the mitigation associated with a particular development can be customized to fit the applicant's interests so long as the net effect is that the impacts are in fact mitigated. The guidelines also clarify their applicability in areas such as existing and on-going agricultural practices, or existing and established businesses, thereby reducing the costs associated with regulatory uncertainty.

     Another feature of the guidelines that allows for flexibility is that they are designed primarily as a set of performance measures. This means that local government has latitude to design their local master program to fit local circumstances so long as the overall performance requirements are met. Thereby, local government has the ability to adjust their specific local approach to an issue in a manner that minimizes cost impacts to local business interests. Additionally, as noted above, the Shoreline Management Act requires that local government make provisions for conditional uses and variances. This provides the regulatory flexibility to adjust requirements when appropriate and necessary so long as the overall interests that the SMA was designed to protect are properly addressed.

     As established in statute, the schedule for implementation of these guidelines allows local government up to eleven years to develop and adopt master programs after the projected adoption date of the regulation. This means that most businesses that may be impacted by the regulations will have a substantial amount of time to adapt prior to actually being affected by the regulations.

     In drafting the guidelines it was fully recognized that numerous other state and local laws currently exist which contain requirements that are consistent with the goals, and objectives of the SMA and which can contribute to satisfying the SMA's overall policy directives. With this in mind, the proposed guidelines wherever possible avoided creating new requirements of business where existing regulations could satisfy the need. This has the effect of eliminating potentially redundant and/or duplicative requirements that can and do have a cost to local government and indirectly to small businesses that must ultimately comply. The guidelines for example, promote the concept of adoption by reference (when updating local SMP's) of other existing land use regulations, such as local (GMA) critical areas ordinance provisions. Further, the guidelines often wholly or in part defer to the requirements of other existing laws, when addressing such commercial activities as forest practices and mining. Again this approach has the effect of reducing and mitigating the cost of compliance on small business.

     Additionally, the cost of new restrictions applicable to certain shoreline small businesses, such as those that presently design and build bulkheads and related shoreline stabilization structures, is to some degree mitigated by the promotion of new ways of doing similar business. New approaches promoting the planting of native vegetation and bioengineered solutions to shoreline stabilization rather than traditional hardened bulkhead structures for example should create new opportunities for small business and mitigate for the cost of compliance in this sector.

     Part 5 - How was Small Business Involved in the Development of the Rule? Ecology provided multiple opportunities for involvement by interested citizens, businesses, organizations and interest groups throughout the process of development of the guidelines. This has included public meetings, workshops and hearings, broad distribution of the various drafts and substantial opportunity for comment. A summary of the input received can be found in the "Responsiveness Summary: State Shoreline Master Program Guidelines" (Ecology, 2000). In this way, small business was involved in some of the drafting of the guidelines.

     More recently, during the year 2002, small business worked directly with environmental and local government representatives, using professional mediators. As a result of that effort, a very broad coalition of interest groups (including groups representing small business) reached a consensus that ecology should proceed with rule making on the draft rules that are evaluated by this SBEIS. A list of those groups is available by examining court documents associated with the resolution of litigation arising out of a prior version of the guidelines.

     The business groups and organizations included:

•     Washington Aggregates and Concrete Association,

•     Association of Washington Business (AWB),

•     Associated General Contractors of Washington,

•     Basta Marine, Inc.,

•     Building Industry Association of Washington (BIAW),

•     Independent Business Association of Washington,

•     National Association of Industrial and Office Properties,

•     National Federation of Independent Business,

•     Northwest Marine Trade Association,

•     Rose Ranch,

•     United Property Owners of Washington,

•     Washington Association of Realtors,

•     Washington Cattleman's Association,

•     Washington Contract Loggers Association,

•     Washington State Farm Bureau,

•     Washington State Grange.

     Part 6 - List of Industries Required to Comply with the Proposed Guidelines: The Shoreline Management Act does not apply to any one group or type of business or industry but rather applies to any use made of the shorelines of the state. Taken statewide, all groups and types of business could probably be found to be represented somewhere in the shorelines, however, since shorelines comprise only about 2% of the state's total land base, very few businesses would be found predominantly in the shoreline. Certainly the various businesses that qualify as water dependent are affected most directly.

     While the regulations generated by local government in response to the guidelines may affect any business located or conducted in the shorelines, as previously noted only those that propose to establish new uses or facilities or expand existing uses or facilities would likely be directly affected as the ongoing operation of existing business uses and facilities are generally allowed to continue.

     As noted previously, the main sectors that will likely be affected will be the development business, shoreline stabilization contractors, agricultural business, and mining and water transportation. Based on this, individual SIC codes were evaluated and are listed in Appendix B. Also listed in Appendix D is the SIC codes for businesses found to be located on the shoreline for King and Yakima counties.


References


     1. Brown, Gardner & Henry Pollakowski, Economic Valuation of Shoreline, Review of Economics and Statistics, Vol. 59, No. 3, (1977)

     2. Washington State Department of Agriculture, Washington Agricultural Statistics, 2002

     3. Washington State Department of Ecology, Evaluation of Probable Benefits and Costs: Amended Shoreline Master Program Guidelines, Publication 00-06-043, (2000)

     4. Washington State Department of Ecology, Proposed Shoreline Master Program Guidelines Final Environmental Impact Statement, Publication 00-06-020, (2000)

     5. Washington State Department of Ecology, Responsiveness Summary State Shoreline Master Program Guidelines, Publication 00-06-042, (2000)



Appendix A

A Brief History of the Shoreline Master Program Guidelines Update



     • 1990: Legislature passes GMA.

     • 1991-94: In response to local government requests, ecology develops and implements the shorelands growth management project to deliver technical assistance to local governments targeted at SMA/GMA integration. While the SMA and GMA are found to be generally compatible, there are procedural, technical and legal questions that lead to a conclusion that the two statutes need some changes to assure they work together. This issue is presented to the Governor's Regulatory Reform Taskforce in 1994.

     • 1995: In response to the Governor's Regulatory Reform Taskforce recommendations, legislature enacts ESHB 1724 which makes a variety of changes in both the SMA and GMA statutes and directs ecology to periodically review and update the SMA guidelines as a means of assuring consistency between SMA and GMA policies.

     • 1996: Focus groups conducted in Everett, Longview, Moses Lake and Tacoma on guidelines issues. A statewide public opinion telephone survey of eight hundred forty residents, split equally east and west side, on shoreline management was also conducted to assess public views of shoreline management issues. Convened Shorelines Policy Advisory Group (ports, cities, counties, League of Women Voters, agriculture, business, forestry, tribal and environmental groups) which resulted in preparation of a draft of revised guidelines. Draft was circulated for comment to interested parties and local governments and four public hearings were held.

     • January 1997: Local governments and ports ask ecology to put further Guidelines rule development "on hold" until Land Use Study Commission (LUSC) is consulted. Ecology agrees.

     • July-October 1997: A broadly representative subcommittee of the LUSC holds seven public meetings to address SMA/GMA integration issues. The workgroup reached no consensus, but issued a report providing detailed directions for more "efficient and effective" shoreline regulations and related legislation and also documenting the need for updated guidelines.

     • May 1998: With endorsement of the governor and the Joint Natural Resources Cabinet, ecology establishes the Shorelines Guidelines Commission, with representatives of cities, counties, tribes, ports, forestry, the environmental community, and water-dependent business. Agriculture and general business community were invited, but declined to participate. The guidelines commission holds nineteen public meetings and advises ecology on guidelines update; in the process the commission reviewed two different complete drafts of the guidelines and issues a final report on February 16, 1999, advising ecology to proceed with a broader rule-adoption process.

     • 1999: Ecology officially releases formal draft rule, starts formal rule-adoption process. Four open house/public hearings held in May 1999. Local governments request more hearings and extension of comment deadline. Ecology agrees. Five more hearings held in July with comment period extended to August 4. Ecology receives 2,500 comment letters, and more than two hundred people testify at the nine hearings. After review of public comment, ecology terminates the formal rule adoption process and works to further clarify and fine tune the guidelines (rule) language.

     • December 17, 1999-March 1, 2000: Held "informal" public comment period on new "working draft" guidelines, with emphasis on getting reaction from legislators and local government implementers. Working draft circulated to interested parties and posted on internet site. Received approximately 100 comment letters.

     • September 1999-May 2000: Met with federal agencies and tribes to prepare an optional "Path B" of guidelines for local governments that choose to seek ESA liability protection through their shoreline programs; conducted "informal" review period on draft Path B with local and state agencies.

     • August 1999-May 2000: Met extensively with legislators, local governments and interested groups at meetings, conferences and workshops to present information and gather comments on informal draft Path A and B rule language.

     • Throughout the rule development process, interested parties were kept informed through a variety of means, including conference and in-the-field discussions, news releases, paid advertisements, newsletters (Coastal Currents, Confluence, and SMP Update) sent to all cities and counties and interested parties, and through a website. City and county associations and other groups also reported on progress in their own newsletters.

     • June-August 2000: A second formal round of guidelines rule adoption is begun, commencing a sixty day comment period. The proposed rule contains two different paths: Path A responding to local governments that wanted more flexibility in how they met SMA standards; an optional Path B containing more prescriptive standards designed to support both SMA and ESA compliance. Public hearing notices were published in every county of the state for three weeks preceding each hearing. News releases were issued and the hearings were covered by newspapers and radio stations statewide. Notice of the hearings were sent to over 4,000 interested parties and advertised in ecology's Confluence, with a circulation of over 9,500 people. Eight public hearings were held in Pasco, Spokane, Wenatchee, Olympia, Raymond, Vancouver, Seattle, and Bellingham. Several hearings were broadcast on Television Washington (TVW). Guest editorial columns were printed in numerous newspapers across the state. Ecology received more than 2,000 letters during the comment period.

     • August-November 2000: Ecology compiles and analyzes public comments; completes a final environmental impact statement; implementation plan; benefit/cost analysis; and prepares a detailed response to all comments received.

     • November 29, 2000: After reviewing all related materials Director Fitzsimmons adopts new shoreline management guidelines. Ecology releases responsiveness summary and related materials to all interested parties.

     • January 2001: The guidelines rule is appealed to the Shoreline Hearings Board by numerous parties and individuals including a broad coalition of business and local government interests and environmental organizations.

     • August 27, 2001: The State of Washington Shorelines Hearings Board invalidated the new guidelines rule for exceeding the statutory authority of the SMA (by implementing the federal ESA) and for failure to comply with certain procedural requirements of the Administrative Procedure Act, most notably required public review of economic analyses and related materials. The SHB's action remanded the rule to ecology for readoption consistent with the board's decision. The decision did not invalidate ecology's repeal of the previous guidelines - thus leaving the state with no shoreline guidelines, even though the existing SMA statute and local shoreline programs remain in effect.

     • January-December 2002: The governor and attorney general convene mediation talks aimed at reaching a legal settlement. The parties all filed appeals to the SHB ruling to preserve their standing in superior court. The parties appointed representatives to a steering committee that did the negotiating. Former State Supreme Court Justice Richard Guy and Bill Ross served as mediators.

     • December 2002: The negotiating parties reach agreement on: New draft guidelines to propose for rule making; a package of legislation to propose in 2003 that replaces the existing two-year update schedule for local governments with a phased-in schedule from 2005 to 2014; provision of $2 million in the upcoming 2003-05 budget for the first wave of cities and counties to get started, with additional funding proposed to complete the update schedule; and terms for concluding the lawsuit.

Appendix B
SIC Codes13

Code Description No. Firms

(<50 Employees)

Employment No. Firms

(>50 Employees)

Employment
0111 Wheat Farming 1,107 1,066
0115 Corn Farming 29 57
0119 Cash Grains (NEC)14 214 209
0134 Irish Potatoes 126 1,034 6 413
0139 Field Crops, Except Cash Grains (NEC) 532 2,254 8 722
0161 Vegetables and Melons 330 971 6 390
0171 Berry Crops 231 783
0172 Grape Farming 306 1,615 8 927
0175 Deciduous Tree Fruits 2,752 13,039 42 4,276
0179 Fruits and Tree Nuts (NEC) 21 169
0181 Ornamental Floriculture and Nursery Products 303 3,219 14 1,733
0182 Food Crops Grown Under Cover 24 332
0191 General Farms, Primarily Crops 232 1,270 8 785
0211 Beef Cattle Feedlots 26 606
0212 Beef Cattle, Except Feedlots 247 383
0213 Hogs 5 5
0214 Sheep and Goats 10 26
0241 Dairy Farms 539 3,607
0251 Broiler, Fryer and Roaster Chickens 19 55
0252 Chicken Eggs 27 569
0254 Poultry Hatcheries 4 89
0259 Poultry and Eggs (NEC) 4 22
0271 Fur Bearing Animals and Rabbits 14 38
0272 Horses and Other Equines 90 175
0273 Animal Aquaculture 36 197
0279 Animal Specialties (NEC) 45 132
0291 General Farms, Primarily Livestock & Animal Specialties 6 15
1442 Construction Sand and Gravel 77 711 5 326
1629 Heavy Construction (NEC) 373 2,044 16 2,051
3731 Ship Building and Repairing 48 554 9 946
3732 Boat Building and Repairing 216 1,711 13 1,107
4412 Deep Sea Foreign Transportation of Freight 17 253
4424 Deep Sea Domestic Transportation of Freight 9 387 8 763
4449 Water Transportation of Freight 18 326
4481 Deep Sea Transportation of Passengers, Except by Ferry 4 1,238
4482 Ferries 23 1,654
4489 Water Transportation of Passengers 18 229
4491 Marine Cargo Handling Services 68 2,582 16 1,731
4492 Towing and Tugboat Services 22 698 4 305
4493 Marinas 101 578
4499 Water Transportation Services 67 364
6552 Land Subdividers and Developers 364 1,749 5 334

Appendix C

Determination of Existing Mean/Median Land Areas by Firm Size



     To aid in assessment of the effects of revisions to the shoreline regulations, ecology obtained data from several sources. The initial step involved obtaining data from assessor's roles for a few sample counties. The counties selected included King County, an urban county in Western Washington, and Yakima County, a predominantly agricultural county in Eastern Washington. These counties were selected both to represent the East and West of Washington and because the required data could be relatively easily obtained. In general, King County tends to be more urban than most of the westside counties but has most of the commercial endeavors located in Western Washington. Yakima County is predominantly rural, with a small number of more urban areas. It possesses many of the characteristics of the more rural eastern counties. Though the following analysis is based explicitly on these two counties, and it is likely that specific cases may vary from the ones examined here, the data was used to be representative of the types of ownership and commercial endeavors located elsewhere in the state.

     The methodology for each county was similar. Assessor's data was obtained for all land zoned commercial in the county.15 This data included identifier, land use, square footage, and waterfront length and attributes in some cases.16 Waterfront locations for Yakima County are not kept in the assessor's database and so they were first determined utilizing Yakima's geographic information system (GIS) and then merged with assessor's information. This data was then merged with other data that indicated taxpayer name and address. This was used to identify land ownership which might differ from the observed land use. This data was further analyzed and government entities were removed. Lastly, employment data was obtained for each parcel owner that could be identified from the Washington Employment Security Department. This yielded the SIC code and employment levels17 for each identified firm allowing ecology to determine small from large firms and analyze parcel sizes. Each group was then statistically evaluated to determine mean and median lot sizes. These mean and median lot sizes were then used in the impact evaluation described in Part 3.

     Data Analysis: The data obtained for King County included a unique identifier, property name, parcel size and in some cases waterfront length and attributes. This data was merged with a separate file that contained taxpayer identification and address to establish parcel ownership. All publicly owned parcels and privately owned parcels owned by out of state companies were identified and removed.18 The remaining dataset contained approximately six hundred individual records. This data was then individually linked with employment data that was either publicly available at the Washington State Employment Security Department's (ESD's) website or confidential data obtained from ESD.

     In general, there are both small and large firms in the dataset. There are also a significant number of individual property owners. These are generally not classified as "business entities" but since they involve ownership of commercial land and likely have as the main objective the "purpose of making a profit" were included in the analysis (separately) below. All parcels owned by individual property owners were counted as having one employee.19 Many corporations could not be located in either employment database. These include a large number of "LLC's" and some corporations and trusts. It is likely that these corporations are small firms (i.e. have less than fifty employees). However, they were not included in the analysis that follows.

     Figure 1 indicates the size class and frequency for properties identified for King County.20 As can be seen the largest size class for King County is individual property owners followed by small firms and large firms.

Place illustration here.

Figure 1. Distribution of privately-owned waterfront property in King County


     Analysis of the data revealed the typical property holdings for the different classes. Table 1 shows the results. As can be seen, larger firms generally have larger parcels whether measured by mean or median parcel size. The mean property size for large firms is approximately five times the mean small size parcel. The median property size for large firms is 2.1 times the mean small parcel size.21

Table 1. Ownership and mean and median parcel size for waterfront properties in King County

Ownership Mean Area

(sq. ft.)

Median Area

(sq. ft.)

Individual Owners 173,600 104,671
Small Firms 251,001 115,870
Large Firms 1,248,374 241,146

     There are approximately thirty-six large firms in the sample and sixty-five small firms that could be identified. However, incorporating the individual property owners and the unidentified firms adds over three hundred businesses. As such, this study uses all of the largest businesses in the sample to describe the businesses that are required to comply. In some cases, the exact number of employees is not known, but only the size range. In this case, a conservative assumption using the size class was utilized. This was used to generate the firm size and SIC codes listed in Appendix D.

     Data for Yakima County was also obtained. GIS records for parcels located along the Yakima, Naches and Tieton rivers were evaluated and all waterfront parcels along these rivers with associated parcel sizes, taxpayer record, and use code were provided. This data was analyzed to remove all residential parcels and all vacant residential land and then individually matched with employment data using the databases described above to determine the number of employees and SIC codes. The predominant form of shoreline ownership in Yakima is also individual ownership. However, most of the land is classified for agricultural use and so is likely to be utilized for the purpose of making a profit. As such, it was also included separately in the analysis that follows. All publicly owned parcels and parcels owned by out of state companies were removed. All parcels that could not be identified as individually owned or corporate owned were not included in the analysis.22

     In Yakima County a similar distribution of land ownership by firm size as King County exists for the waterfront parcels considered. From Figure 2 we can see that the distribution of ownership indicates that individual ownership is the predominant type of ownership followed by small firms and large firms.

Place illustration here.

Figure 2. Distribution of privately-owned waterfront property in Yakima County


     Analysis of the data revealed the typical property holdings for the different classes. The results are presented in Table 2. As can be seen, larger firms generally own larger parcels whether measured by mean or median size. The mean large firm parcel size is approximately 6.3 times the mean small size parcel. The median parcel size for large firms is 2.3 times the median small parcel size.23

Table 2. Ownership and mean and median parcel size for waterfront properties in Yakima County

Ownership Mean Area

(sq. ft.)

Median Area

(sq. ft.)

Individual Owners 1,110,479 701,282
Small Firms 1,879,648 1,273,750
Large Firms 11,866,447 2,874,934

     There are approximately thirteen large firms in the sample and twenty-five small firms that were identified. However, incorporating the individual property owners and the unidentified firms adds approximately one hundred ninety businesses. As such, the study uses all of the largest businesses in the sample to describe the businesses that are required to comply. The firm size and SIC codes are listed in Appendix D.

     The economic impacts can be evaluated in several ways. For the purposes of this analysis, the impacts were determined using "cost per employee." As such, the relevant land area measure is not the overall parcel size, but the parcel size per employee for the two types of firms. The data was divided into small and large businesses and the mean and median parcel size/employee were calculated. This involved utilizing the total area provided and dividing by the number of employees for each firm. Table 3 displays the square footage/employee distribution for King and Yakima counties. The mean and median parcel size/employee are important since they form the basis for calculating the reduction in land values and other cost impacts associated with the increased requirements on businesses.24

Table 3. Mean Square footage per employee for businesses located in King and Yakima County Shorelines

King County (SF/Employee) Yakima County (SF/Employee)
Small Businesses* 25,100 156,637
Large Businesses 3,075 80,179
* Small business excluding individual ownership


     From Tables 1 and 2, it was determined that large firms tend to have larger parcels, but as can be seen from above, when employment is incorporated, larger firms have smaller parcels on a per employee basis. For King County, the ratio of employee/square foot between small and large businesses is approximately 8.2. For Yakima County the ratio is 2.0. In addition, the actual square footage/employee tends to be larger for Yakima County for all business classifications than for King County. This is likely due to the different commercial enterprises and associated land use in those two locations. Table 4 evaluates the median square footage/median employee values.

Table 4. Median square footage/employee for businesses located in King and Yakima County shorelines

King County (SF/Employee) Yakima County (SF/Employee)
Small Businesses* 23,174 181,964
Large Businesses 2,061 42,278
* Small business excluding individual ownership


     For King County, the median ratio of employee/square foot for small and large businesses is approximately 11.2. For Yakima County the ratio is 4.3. As can be seen, the median square footage/employee values are smaller than the mean values, but the ratios are greater. These increased values represent the elimination of outlying large firms from the statistic. The square footage/employee again tends to be larger for Yakima County than for King County.

     The impact on businesses will be measured on a per employee basis. As such, the fact that smaller firms have greater area per employee implies that any land use regulation applied equally to small and large businesses will likely be disproportionately borne by small firms. The mean and median parcel areas described above were utilized as the basis for the cost impact evaluation provided in Part 3.

Appendix D
Employment Breakdown by Sector-King and Yakima County Shorelines25

SIC King County Yakima County
Units (<50) Employees (<50) Units (>50) Employees (>50) Units (<50) Employees (<50) Units (>50) Employees (>50)
0115 1 1
0139 1 25 1 50
0175 11 72 2 104
0191 1 11
0211 1 205
0212 1 2
0291 1 35
0723 2 177
0811 1 1 1 50
0851 1 1
1442 1 68
1521 2 43 1 50
1542 1 109
1611 1 115 1 100
2033 1 653
2091
2092 2 1065
2099 1 50
2421 1 25 1 3091 1 62
2836
2899 1 10
3273 1 85 1 68
3462 1 100
3565 1 12
3592 1 219
3731 1 36 4 1542
3732 1 334
4424 1 73
4489
4491 1 1 1 110
4492 2 40 2 602
4493 9 28
4911 1 1941
5032 1 267
5146
5148 1 203
5172
5311 1 1000
5411 1 82 1 7
5812 2 57
5983 1 13
6021 1 20
6091 1 43
6282 1 19
6411 1 20
6512 4 57
6513 2 26
6515 2 12
6531 5 48
6552 4 24
6719
7011 1 10 1 44
7032 2 6
7033 1 1
7361 1 1
7521 1 22 1 137
7992 1 10
7997 4 6 3 233
7999 2 6 1 250 1 21
8051 1 250
8059
8211 1 22
8322 2 815
8331 1 191
8361 1 19
8399 1 50
8611 1 1
8641 3 7 1 35
8661 3 25 1 2
9999 1 5

1 Under RCW 19.85.030(1), an agency is not required to do an SBEIS if its rule does not impose more than minor costs on businesses in an industry. Originally, before all local governments had shoreline master program regulations, the guidelines in chapter 173-16 WAC affected permit decisions and thus may have imposed costs on an industry. Today, local governments have SMPs and the guidelines do not impose costs on business. Notwithstanding this potential reason for not doing an SBEIS, ecology is developing and issuing this SBEIS to ensure that its guidelines have considered this information, and to fulfill its agreement with interested business and environmental groups to conduct an SBEIS process.

2 All summary employment data for Part 2 is from the Washington State Employment Security Department, September 2002.

3 Gross income data is from Department of Revenue, 2001. Agricultural value of production data is from Washington Agricultural Statistics, 2002. These industry statistics for firm number, employment and income include all firms in the industry not just those that own or develop properties in the shoreline areas.

4 These adjustment premiums may underestimate or overestimate the proximity premiums in any one area, but since the comparison between small and large firms is done for the same location, they will only affect the compliance cost estimates not the extent of the disproportionate impact.

5 The BCA prepared for these guidelines utilized 75% for incorporated cities and 35% for rural areas. The data included both incorporated and unincorporated areas.

6 In the case of leased land subject to a new restriction, a renegotiation of the lease may occur to account for the new restriction. If this does not occur, then some of the impact could be borne by the lessee instead of the owner.

7 For this analysis $20/square foot for King County and $1/square foot for Yakima County were used.

8 "75% Reduction" means a 75% reduction in land value for the 10% of area now restricted in use. Reductions in land value do not include offsetting reductions in property tax burden.

9 This would also hold for assessment/monitoring costs that were proportional to land area.

10 For example, no shellfish harvesters were present in the data.

11 Brown and Pollakowski, (1977).

12 Small firms would benefit more (on a $/employee basis) from a given increase in land value due to setbacks on a neighboring piece of property.

13 All firm number and employment data were taken from the Washington State Employment Security Department, Labor Market and Economic Analysis, September 2002. Data represents totals for these industries statewide.

14 (NEC)-Not Elsewhere Classified.

15 Yakima County provided all shoreline parcels. Use codes were used to identify which parcels were commercial. All developed and vacant residential land was removed prior to the analysis.

16 King County has fields for shoreline length and attributes. However, it is only "active" in a small percentage (approximately 17%) of cases.

17 In most cases, the exact number of employees was obtained if the data existed at all. In a small number of cases, only employment ranges were available.

18 Removing out-of-state firms was done due to the difficulty in obtaining employment data on firms located throughout the United States.

19 This includes cases where multiple parties were listed as the taxpayers of record.

20 One hundred sixty-eight nonindividual property owners could not be found in either source of data. The impact of this is discussed in what follows. If they are indeed small firms, the ownership distribution would change such that small firms would be the predominant form of ownership for waterfront commercial parcels in King County.

21 The median is not sensitive to extreme values and so would not be affected by extremely large parcels owned by large firms.

22 This amounted to eighteen entities that could not be identified.

23 The median is not sensitive to extreme values and so would be less affected by extremely large parcels owned by large firms.

24 Small and large firms were not further separated by SIC code because there were not enough firms in most categories to provide a systematic comparison.

25 Employment values based on 2000 data provided by Info USA, Omaha, NE, and 2002 data provided by the Washington Employment Security Department. In some cass, only size classes were available and the minimum value for the size class was utilized.

     A copy of the statement may be obtained by writing to Shorelines SBEIS Request, P.O. Box 47600, Olympia, WA 98504-7600, e-mail shorelineguidelines@ecy.wa.gov, fax (360) 407-6902.

     RCW 34.05.328 applies to this rule adoption. A draft cost benefit analysis is available for review and comment. A copy of the draft document may be obtained by writing to Shorelines CBA Request, P.O. Box 47600, Olympia, WA 98504-7600, e-mail shorelineguidelines@ecy.wa.gov, fax (360) 407-6902.

     Hearing Location: Seattle Center, Shaw Room, 305 Harrison Street, Seattle, WA 98109, on Tuesday, August 5; at the Public Utility District of Cowlitz County, Auditorium, 961 12th Avenue, Longview, WA 98632, on Wednesday, August 6; at the Washington State University, Phase I Classroom, 668 North River Point, Spokane, WA 99202, on Tuesday, August 12; and at the Chelan County Public Utility District No. 1, 327 North Wenatchee Avenue, Wenatchee, WA 98801, on Wednesday, August 13.

     All locations: Open House at 5:30 p.m.; and public hearing at 7:00 p.m.

     Assistance for Persons with Disabilities: Contact Debi Irwin by July 28, 2003, (360) 407-7291, 711 (TTY) or 1-800-833-8973 (TTY).

     Submit Written Comments to: Shoreline Guidelines Comments, P.O. Box 47600, Olympia, WA 98504-7600, e-mail shorelineguidelines@ecy.wa.gov, fax (360) 407-6902, by 5:00 p.m., September 15, 2003.

     Date of Intended Adoption: December 1, 2003.

June 16, 2003

Tom Fitzsimmons

Director

OTS-6471.1


AMENDATORY SECTION(Amending Order 95-17a, filed 11/29/00, effective 12/30/00)

WAC 173-26-010   Authority and purpose.   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. Part((s)) III ((and IV)) comprises the guidelines pursuant to RCW 90.58.060 and provides ((alternative approaches to)) guidance for developing the content of shoreline master programs. Part ((V)) IV - addresses the requirements of the state Ocean Resources Management Act.

[Statutory Authority: RCW 90.58.060 and 90.58.200. 00-24-031 (Order 95-17a), § 173-26-010, filed 11/29/00, effective 12/30/00. 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.]


AMENDATORY SECTION(Amending Order 95-17a, filed 11/29/00, effective 12/30/00)

WAC 173-26-020   Definitions.   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.

     (3)(a) "Agricultural activities" means agricultural uses and practices including, but not limited to: Producing, breeding, or increasing agricultural products; rotating and changing agricultural crops; allowing land used for agricultural activities to lie fallow in which it is plowed and tilled but left unseeded; allowing land used for agricultural activities to lie dormant as a result of adverse agricultural market conditions; allowing land used for agricultural activities to lie dormant because the land is enrolled in a local, state, or federal conservation program, or the land is subject to a conservation easement; conducting agricultural operations; maintaining, repairing, and replacing agricultural equipment; maintaining, repairing, and replacing agricultural facilities, provided that the replacement facility is no closer to the shoreline than the original facility; and maintaining agricultural lands under production or cultivation;

     (b) "Agricultural products" includes, but is not limited to, horticultural, viticultural, floricultural, vegetable, fruit, berry, grain, hops, hay, straw, turf, sod, seed, and apiary products; feed or forage for livestock; Christmas trees; hybrid cottonwood and similar hardwood trees grown as crops and harvested within twenty years of planting; and livestock including both the animals themselves and animal products including, but not limited to, meat, upland finfish, poultry and poultry products, and dairy products;

     (c) "Agricultural equipment" and "agricultural facilities" includes, but is not limited to:

     (i) The following used in agricultural operations: Equipment; machinery; constructed shelters, buildings, and ponds; fences; upland finfish rearing facilities; water diversion, withdrawal, conveyance, and use equipment and facilities including, but not limited to, pumps, pipes, tapes, canals, ditches, and drains;

     (ii) Corridors and facilities for transporting personnel, livestock, and equipment to, from, and within agricultural lands;

     (iii) Farm residences and associated equipment, lands, and facilities; and

     (iv) Roadside stands and on-farm markets for marketing fruit or vegetables; and

     (d) "Agricultural land" means those specific land areas on which agricultural activities are conducted as of the date of adoption of a local master program pursuant to these guidelines as evidenced by aerial photography or other documentation. After the effective date of the master program, land converted to agricultural use is subject to compliance with the requirements of the master program.

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

     (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.

     (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. 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. 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. 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.

     With the exception of shorelands in or meeting the criteria for 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 T&E species fish passage draining through a dike or other constricting structure shall be considered part of the CMZ)) area along a river within which the channel(s) can be reasonably predicted to migrate over time as a result of natural and normally occurring hydrological and related processes when considered with the characteristics of the river and its surroundings.

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

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

     (11))) (9) "Development regulations" means the controls placed on development or land uses 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, planned unit development ordinances, subdivision ordinances, and binding site plan ordinances together with any amendments thereto.

     (((12))) (10) "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.

     (((13))) (11) "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))) (12) "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: 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: 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: 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 sediment, nutrients, and toxic compounds.

     • Ground water recharge.

     • Maintenance of base flows.

     • Nutrient filtering.

     • Habitat for: 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 T&E 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. 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 naturally occurring 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 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, vertical transport, and tidal erosion and deposition)) work performed or role played by the physical, chemical, and biological processes that contribute to the maintenance of the aquatic and terrestrial environments that constitute the shoreline's natural ecosystem. See WAC 173-26-200 (2)(c).

     (13) "Ecosystem-wide processes" means the suite of naturally occurring physical and geologic processes of erosion, transport, and deposition; and specific chemical processes that shape landforms within a specific shoreline ecosystem and determine both the types of habitat and the associated ecological functions.

     (((18))) (14) "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 in similar circumstances, or studies or tests have demonstrated in similar circumstances 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 legal 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 T&E species.

     (((19))) (15) "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))) (16) "Flood plain" is synonymous with one hundred-year ((floodplain)) flood plain 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))) (17) "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 geological and hydrological 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 professional engineers ((())or geologists(())) who have professional expertise about the regional and local shoreline geology and processes.

     (((22))) (18) "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))) (19) "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.

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

     (((28))) (21) "Marine" means pertaining to tidally influenced waters, including oceans, sounds, straits, marine channels, and estuaries, including the Pacific Ocean, Puget Sound, Straits of Georgia and Juan de Fuca, and the bays, estuaries and inlets associated therewith.

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

     (((30) "Mitigation" or "mitigation sequencing" means the following sequence of steps listed in order of 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))) (23) "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))) (24) "Nonwater-oriented uses" means those uses that are not water-dependent, water-related, or water-enjoyment.

     (((34))) (25) "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;

     • Fish spawning habitat;

     • Important wildlife habitat;

     • Important fish or wildlife seasonal range;

     • Important fish or wildlife movement corridor;

     • Rearing and foraging habitat;

     • Important marine mammal haul-out;

     • Refugia habitat;

     • Limited availability;

     • High vulnerability to habitat alteration;

     • Unique or dependent species; or

     • Shellfish bed.

     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))) (26) "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 statewide, by virtue of their inclination to congregate. Examples include heron colonies, seabird concentrations, and marine mammal congregations.

     (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 T&E 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 T&E species.

     (37))) (27) "Provisions" means policies, regulations, standards, guideline criteria or environment designations.

     (((38))) (28) "Restore," "restoration" or "ecological restoration" means the ((significant)) reestablishment or upgrading of impaired ecological shoreline processes or functions. This may be accomplished through measures ((such as)) including, but not limited to, revegetation, removal of intrusive shoreline structures and removal or treatment of toxic materials. Restoration does not ((necessarily)) imply a requirement for returning the shoreline area to aboriginal or pre-European settlement conditions.

     (((39) "Restore" means to significantly reestablish or upgrade shoreline ecological functions through measures such as revegetation, removal of intrusive shoreline structures, and removal or treatment of toxic sediments. To restore does not necessarily imply returning the shoreline area to aboriginal or pre-European settlement conditions.

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

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

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

     (((43))) (31) "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)).

     (((44))) (32) "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 structure. They can include other actions, such as clearing, grading, or application of chemicals.

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

     (46))) (33) "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.

     (((47) "Significant ecological impact" means an effect or consequence of a human-caused action if any of the following apply:

     (a) The action degrades or changes an ecological function or ecosystem-wide process to such a degree that the ecosystem can no longer perform the function at levels within its natural range of variability or that the performance of the function falls outside the range needed to maintain the integrity of other ecological processes in shoreline areas. As used in this definition, the normal range of variability does not include alterations caused by catastrophic events.

     (b) Scientific evidence or objective analysis indicates that the action could cause degradation or change 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 degradation or change 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.

     Significant ecological impacts do not include impacts that are inconsequential to attaining the objectives of the act or to the protection and restoration of shoreline ecological functions or ecosystem-wide processes.

     (48))) (34) "Significant vegetation removal" means the removal or alteration of 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.

     (((49) "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 generally be based on either Douglas fir or western hemlock, unless based on another species due to local conditions. 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 generally is the average height, at age seventy-five years, of a black cottonwood tree growing under those site conditions.

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

     (((51) "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.

     (52))) (36) "Substantially degrade" means to cause significant ecological impact.

     (((53) "Threatened and endangered species" or "T&E species" means those native species that 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 listed as threatened or endangered species under the federal Endangered Species Act, 16 U.S.C. 1533.

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

     (((55))) (38) "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))) (39) "Water-oriented use" means a use that is water-dependent, water-related, or water-enjoyment, or a combination of such uses.

     (((57))) (40) "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))) (41) "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 90.58.060 and 90.58.200. 00-24-031 (Order 95-17a), § 173-26-020, filed 11/29/00, effective 12/30/00. 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.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.PART III

GUIDELINES(( -- DEFAULT APPROACH))
NEW SECTION
WAC 173-26-171   Authority, purpose and effects of guidelines.   (1) Authority. RCW 90.58.090 authorizes and directs the department to adopt "guidelines consistent with RCW 90.58.020, containing the elements specified in RCW 90.58.100" for development of local master programs for regulation of the uses of "shorelines" and "shorelines of statewide significance." RCW 90.58.200 authorizes the department and local governments "to adopt such rules as are necessary and appropriate to carry out the provisions of" the Shoreline Management Act.

     (2) Purpose. The general purpose of the guidelines is to implement the "cooperative program of shoreline management between local government and the state." Local government shall have the primary responsibility for initiating the planning required by the Shoreline Management Act and "administering the regulatory program consistent with the policy and provisions" of the act. "The department shall act primarily in a supportive and review capacity with an emphasis on providing assistance to local government and insuring compliance with the policy and provisions" of the act. RCW 90.58.050.

     In keeping with the relationship between state and local governments prescribed by the act, the guidelines have three specific purposes: To assist local governments in developing master programs; to serve as standards for the regulation of shoreline development in the absence of a master program along with the policy and provisions of the act and, to be used along with the policy of RCW 90.58.020, as criteria for state review of local master programs under RCW 90.58.090.

     (3) Effect.

     (a) The guidelines are guiding parameters, standards, and review criteria for local master programs. The guidelines allow local governments substantial discretion to adopt master programs reflecting local circumstances and other local regulatory and nonregulatory programs related to the policy goals of shoreline management as provided in the policy statements of RCW 90.58.020, WAC 173-26-175 and 173-26-180. The policy of RCW 90.58.020 and these guidelines constitute standards and criteria to be used by the department in reviewing the adoption and amendment of local master programs under RCW 90.58.090 and by the growth management hearings board and shorelines hearings board adjudicating appeals of department decisions to approve, reject, or modify proposed master programs and amendments under RCW 90.58.190.

     (b) Under RCW 90.58.340, the guidelines, along with the policy of the act and the master programs, also shall be standards of review and criteria to be used by state agencies, counties, and public and municipal corporations in determining whether the use of lands under their respective jurisdictions adjacent to the shorelines of the state are subject to planning policies consistent with the policies and regulations applicable to shorelines of the state.

     (c) The guidelines do not regulate development on shorelines of the state in counties and cities where approved master programs are in effect. In local jurisdictions without approved master programs, development on the shorelines of the state must be consistent with the policy of RCW 90.58.020 and the applicable guidelines under RCW 90.58.140.

     (d) As provided in RCW 90.58.060, the department is charged with periodic review and update of these guidelines to address technical and procedural issues that arise as from the review of shoreline master programs (SMPs) as well as compliance of the guidelines with statutory provisions. As a part of this process, ecology will compile information concerning the effectiveness and efficiency of these guidelines and the master programs adopted pursuant thereto with regard to accomplishment of the policies of the Shoreline Management Act and the corresponding principles and specific requirements set forth in these guidelines.

[]


NEW SECTION
WAC 173-26-176   General policy goals of the act and guidelines for shorelines of the state.   (1) The guidelines are designed to assist local governments in developing, adopting, and amending master programs that are consistent with the policy and provisions of the act. Thus, the policy goals of the act are the policy goals of the guidelines. The policy goals of the act are derived from the policy statement of RCW 90.58.020 and the description of the elements to be included in master programs under RCW 90.58.100.

     (2) The policy goals for the management of shorelines harbor potential for conflict. The act recognizes that the shorelines and the waters they encompass are "among the most valuable and fragile" of the state's natural resources. They are valuable for economically productive industrial and commercial uses, recreation, navigation, residential amenity, scientific research and education. They are fragile because they depend upon balanced physical, biological, and chemical systems that may be adversely altered by natural forces (earthquakes, volcanic eruptions, landslides, storms, droughts, floods) and human conduct (industrial, commercial, residential, recreation, navigational). Unbridled use of shorelines ultimately could destroy their utility and value. The prohibition of all use of shorelines also could eliminate their human utility and value. Thus, the policy goals of the act relate both to utilization and protection of the extremely valuable and vulnerable shoreline resources of the state. The act calls for the accommodation of "all reasonable and appropriate uses" consistent with "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" and consistent with "public rights of navigation." The act's policy of achieving both shoreline utilization and protection is reflected in the provision that "permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, in so far as practical, any resultant damage to the ecology and environment of the shoreline area and the public's use of the water." RCW 90.58.020.

     (3) The act's policy of protecting ecological functions, fostering reasonable utilization and maintaining the public right of navigation and corollary uses encompasses the following general policy goals for shorelines of the state. The statement of each policy goal is followed by the statutory language from which the policy goal is derived.

     (a) The utilization of shorelines for economically productive uses that are particularly dependent on shoreline location or use.

     RCW 90.58.020:

     "The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration and preservation."

     "It is the policy of the state to provide for the management of the shorelines by planning for and fostering all reasonable and appropriate uses."

     "Uses shall be preferred which 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."

     RCW 90.58.100:

     "(2) The master programs shall include, when appropriate, the following:

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

     (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 shorelines 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;. . ."

     (b) The utilization of shorelines and the waters they encompass for public access and recreation.

     RCW 90.58.020:

     "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."

     "Alterations of the natural conditions of the shorelines of the state, in those limited instances when authorized, shall be given priority for. . .development that will provide an opportunity for substantial numbers of people to enjoy the shorelines of the state."

     RCW 90.58.100:

     "(2) The master programs shall include, when appropriate, the following:

     (b) A public access element making provisions 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;. . ."

     ***

     "(4) Master programs will reflect that state-owned shorelines of the state are particularly adapted to providing wilderness beaches, ecological study areas, and other recreational activities for the public and will give appropriate special consideration to same."

     (c) Protection and restoration of the ecological functions of shoreline natural resources.

     RCW 90.58.020:

     "The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization protection, restoration, and preservation."

     "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. . ."

     "To this end uses shall be preferred which are consistent with the control of pollution and prevention of damage to the natural environment."

     "Permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area. . ."

     RCW 90.58.100:

     "(2) The master programs shall include, when appropriate, the following:

     (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 protection;

     (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;. . ."

     (d) Protection of the public right of navigation and corollary uses of waters of the state.

     RCW 90.58.020:

     "This policy contemplates protecting. . .generally public rights of navigation and corollary rights incidental thereto."

     "Permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, insofar as practical,. . .any interference with the public's use of the water."

     (e) The protection and restoration of buildings and sites having historic, cultural and educational value.

     RCW 90.58.100:

     "(2) The master programs shall include, when appropriate, the following:

     (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;. . ."

     (f) Planning for public facilities and utilities correlated with other shorelines uses.

     RCW 90.58.100:

     "(2) The master programs shall include, when appropriate, the following:

     (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."

     (g) Prevention and minimization of flood damages.

     RCW 90.58.100:

     "(2) The master programs shall include, when appropriate, the following:

     (h) An element that gives consideration to the statewide interest in the prevention and minimization of flood damages."

     (h) Recognizing and protecting private property rights.

     RCW 90.58.020:

     "The legislature further finds that much of the shorelines of the state and the uplands adjacent thereto are in private ownership;. . .and, therefore coordinated planning is necessary. . .while, at the same time, recognizing and protecting private rights consistent with the public interest."

     (i) Preferential accommodation of single-family uses.

     RCW 90.58.020:

     "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. . ."

     RCW 90.58.100:

     "(6) Each master program shall contain standards governing the protection of single-family residences and appurtenant structures against damage or loss due to shoreline erosion. The standards shall govern the issuance of substantial development permits for shoreline protection, including structural methods such as construction of bulkheads, and nonstructural methods of protection. The standards shall provide for methods which achieve effective and timely protection against loss or damage to single-family residences and appurtenant structures due to shoreline erosion. The standards shall provide a preference for permit issuance for measures to protect single-family residences occupied prior to January 1, 1992, where the proposed measure is designed to minimize harm to the shoreline natural environment."

     (j) Coordination of shoreline management with other relevant local, state, and federal programs.

     RCW 90.58.020:

     "In addition. . ." the legislature ". . .finds that ever increasing pressures of additional uses are being placed on the shorelines necessitating increased coordination in the management and development of the shorelines of the state."

     ". . .and therefore, coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state. . ."

     "There is, therefor, 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."

     RCW 90.58.100:

     "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 which will insure the integrated use of the natural and social sciences 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."

[]


NEW SECTION
WAC 173-26-181   Special policy goals of the act and guidelines for shorelines of statewide significance.   In accordance with RCW 90.58.020, the "department, in adopting guidelines for shorelines of statewide significance, and local government, in developing master programs for shorelines of statewide significance, shall give preference to uses in the following order of preference which:

     (1) Recognize and protect the statewide interest over local interest;

     (2) Preserve the natural character of the shoreline;

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

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

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

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

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

[]


NEW SECTION
WAC 173-26-186   Governing principles of the guidelines.   The governing principles listed below are intended to articulate a set of foundational concepts that underpin the guidelines, guide the development of the planning policies and regulatory provisions of master programs, and provide direction to the department in reviewing and approving master programs. These governing principles, along with the policy statement of RCW 90.58.020, other relevant provisions of the act, the regulatory reform policies and provisions of RCW 34.05.328, and the policy goals set forth in WAC 173-26-175 and 173-26-180 shall be used to interpret any ambiguous provisions and reconcile any conflicting provisions of the guidelines.

     (1) The guidelines are subordinate to the act. Any inconsistency between the guidelines and the act must be resolved in accordance with the act.

     (2) The guidelines are intended to reflect the policy goals of the act, as described in WAC 173-26-175 and 173-26-180.

     (3) All relevant policy goals must be addressed in the planning policies of master programs.

     (4) The planning policies of master programs (as distinguished from the development regulations of master programs) may be achieved by a number of means, only one of which is the regulation of development. Other means, as authorized by RCW 90.58.240, include, but are not limited to: The acquisition of lands and easements within shorelines of the state by purchase, lease, or gift, either alone or in concert with other local governments; and accepting grants, contributions, and appropriations from any public or private agency or individual. Additional other means may include, but are not limited to, public facility and park planning, watershed planning, voluntary salmon recovery projects and incentive programs.

     (5) The policy goals of the act, implemented by the planning policies of master programs, may not be achievable by development regulation alone. Planning policies should be pursued through the regulation of development of private property only to an extent that is consistent with all relevant constitutional and other legal limitations (where applicable, statutory limitations such as those contained in chapter 82.02 RCW and RCW 43.21C.060) on the regulation of private property. Local government should use a process designed to assure that proposed regulatory or administrative actions do not unconstitutionally infringe upon private property rights. A process established for this purpose, related to the constitutional takings limitation, is set forth in a publication entitled, "State of Washington, Attorney General's Recommended Process for Evaluation of Proposed Regulatory or Administrative Actions to Avoid Unconstitutional Takings of Private Property," first published in February 1992. The attorney general is required to review and update this process on at least an annual basis to maintain consistency with changes in case law by RCW 36.70A.370.

     (6) The territorial jurisdictions of the master program's planning function and regulatory function are legally distinct. The planning function may, and in some circumstances must, look beyond the territorial limits of shorelines of the state. RCW 90.58.340. The regulatory function is limited to the territorial limits of shorelines of the state, RCW 90.58.140(1), as defined in RCW 90.58.030(2).

     (7) The planning policies and regulatory provisions of master programs and the comprehensive plans and development regulations, adopted under RCW 36.70A.040 shall be integrated and coordinated in accordance with RCW 90.58.340, 36.70A.480, 34.05.328 (1)(h), and section 1, chapter 347, Laws of 1995.

     (8) Through numerous references to and emphasis on the maintenance, protection, restoration, and preservation of "fragile" shoreline "natural resources," "public health," "the land and its vegetation and wildlife," "the waters and their aquatic life," "ecology," and "environment," the act makes protection of the shoreline environment an essential statewide policy goal consistent with the other policy goals of the act. It is recognized that shoreline ecological functions may be impaired not only by shoreline development subject to the substantial development permit requirement of the act but also by past actions, unregulated activities, and development that is exempt from the act's permit requirements. The principle regarding protecting shoreline ecological systems is accomplished by these guidelines in several ways, and in the context of related principles. These include:

     (a) Local government is guided in its review and amendment of local master programs so that it uses a process that identifies, inventories, and ensures meaningful understanding of current and potential ecological functions provided by affected shorelines.

     (b) Local master programs shall include policies and regulations designed to achieve no net loss of those ecological functions.

     (i) Local master programs shall include regulations and mitigation standards ensuring that each permitted development will not cause a net loss of ecological functions of the shoreline; local government shall design and implement such regulations and mitigation standards in a manner consistent with all relevant constitutional and other legal limitations on the regulation of private property.

     (ii) Local master programs shall include regulations ensuring that exempt development in the aggregate will not cause a net loss of ecological functions of the shoreline.

     (c) For counties and cities containing any shorelines with impaired ecological functions, master programs shall include goals and policies that provide for restoration of such impaired ecological functions. These master program provisions shall identify existing policies and programs that contribute to planned restoration goals and identify any additional policies and programs that local government will implement to achieve its goals. These master program elements regarding restoration should make real and meaningful use of established or funded nonregulatory policies and programs that contribute to restoration of ecological functions, and should appropriately consider the direct or indirect effects of other regulatory or nonregulatory programs under other local, state, and federal laws, as well as any restoration effects that may flow indirectly from shoreline development regulations and mitigation standards.

     (d) Local master programs shall evaluate and consider cumulative impacts of reasonably foreseeable future development on shoreline ecological functions and other shoreline functions fostered by the policy goals of the act. To ensure no net loss of ecological functions and protection of other shoreline functions and/or uses, master programs shall contain policies, programs, and regulations that address adverse cumulative impacts and fairly allocate the burden of addressing cumulative impacts among development opportunities. Evaluation of such cumulative impacts should consider:

     (i) Current circumstances affecting the shorelines and relevant natural processes;

     (ii) Reasonably foreseeable future development and use of the shoreline; and

     (iii) Beneficial effects of any established regulatory programs under other local, state, and federal laws.

     It is recognized that methods of determining reasonably foreseeable future development may vary according to local circumstances, including demographic and economic characteristics and the nature and extent of local shorelines.

     (e) The guidelines are not intended to limit the use of regulatory incentives, voluntary modification of development proposals, and voluntary mitigation measures that are designed to restore as well as protect shoreline ecological functions.

     (9) To the extent consistent with the policy and use preference of RCW 90.58.020, this chapter (chapter 173-26 WAC), and these principles, local governments have reasonable discretion to balance the various policy goals of this chapter, in light of other relevant local, state, and federal regulatory and nonregulatory programs, and to modify master programs to reflect changing circumstances.

     (10) Local governments, in adopting and amending master programs and the department in its review capacity shall, to the extent feasible, as required by RCW 90.58.100(1):

     "(a) Utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences 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."

     Under the GMA, the designation and protection of critical areas, including those located in shorelines of the state, shall include best available science pursuant to RCW 36.70A.172.

     (11) In reviewing and approving local government actions under RCW 90.58.090, the department shall insure that the state's interest in shorelines is protected, including compliance with the policy and provisions of RCW 90.58.020.

[]


NEW SECTION
WAC 173-26-191   Master program contents.   (1) Master program concepts. The following concepts are the basis for effective shoreline master programs.

     (a) Master program policies and regulations. Shoreline master programs are both planning and regulatory tools. Master programs serve a planning function in several ways. First, they balance and integrate the objectives and interests of local citizens. Therefore, the preparation and amending of master programs shall involve active public participation, as called for in WAC 173-26-201(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 173-26-191 (1)(e). Fourth, master programs address conditions and opportunities of specific shoreline segments by classifying the shorelines into "environment designations" as described in WAC 173-26-211.

     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 master program policies may not be fully attainable by regulatory means due to the constitutional and other legal limitations on the regulation of private property. The policies may be pursued by other means as provided in RCW 90.58.240. 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 approves 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 an administrative process established by local government pursuant to RCW 90.58.050 and 90.58.140 and enforcement pursuant to RCW 90.58.210 through 90.58.230.

     (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 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 protection;

     (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 statewide interest in the prevention and minimization of flood damages; and

     (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 components of a comprehensive plan. To avoid confusion, "master program element" refers to the definition in the Shoreline Management Act as cited above. 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 statewide significance. The Shoreline Management Act identifies certain shorelines as "shorelines of statewide significance" and raises their status by setting use priorities and requiring "optimum implementation" of the act's policy. WAC 173-26-251 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 environmental 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 173-26-211 presents guidelines for environment designations in greater detail.

     (e) Consistency with comprehensive planning and other development regulations. Shoreline management is most effective and efficient 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 and consistency of comprehensive plans among local jurisdictions. RCW 36.70A.100 states:

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

     Since master program goals and policies are an element of the local comprehensive plan, the requirement for internal and intergovernmental plan consistency may be satisfied by watershed-wide or regional planning.

     Legislative findings provided in section 1, chapter 347, Laws of 1995 (see RCW 36.70A.470 notes) state:

     "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."

     And RCW 36.70A.480(1) (The Growth Management Act) 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 without creating an order of priority among the fourteen goals. 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 the [to] achieve a use policy on said land 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, facilitate consistent, efficient review of projects and permits, and effectively implement the Shoreline Management Act. It should be noted the ecology's authority under the Shoreline Management Act is limited to review of shoreline master programs based solely on consistency with the SMA and these guidelines. It is the responsibility of the local government to assure consistency between the master program and other elements of the comprehensive plan and development regulations.

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

     First, WAC 173-26-191 (2)(b) and (c) describe optional methods to integrate master programs and other development regulations and the local comprehensive plan.

     Second, WAC 173-26-221 through 173-26-251 translate the broad policy goals 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.

     Finally, WAC 173-26-211(3) presents specific methods for testing consistency between shoreline environment designations and comprehensive plan land use designations.

     (2) Basic requirements. This chapter describes the basic components and content required in a master program. A master program must be sufficient and complete to implement the Shoreline Management Act and the provisions of this chapter. A master program shall contain policies and regulations as necessary for reviewers to evaluate proposed shoreline uses and developments for conformance to the Shoreline Management Act. As indicated in WAC 173-26-020, for this chapter: The terms "shall," "must," and "are required" and the imperative voice, mean a mandate; the action is required; the term "should" means that the particular action is required unless there is a demonstrated, sufficient reason, based on a policy of the Shoreline Management Act and this chapter, for not taking the action; and the term "may" indicates that the action is within discretion and authority, provided it satisfies all other provisions in this chapter.

     (a) Master program contents. Master programs shall include the following contents:

     (i)     Master program policies. Master programs shall provide clear, consistent policies that translate broad statewide policy goals set forth in WAC 173-26-176 and 173-26-181 into local directives. Policies are statements of intent directing or authorizing a course of action or specifying criteria for regulatory and nonregulatory actions by a local government. Master program policies provide a comprehensive foundation for the shoreline master program regulations, which are more specific, standards used to evaluate shoreline development. Master program policies also are to be pursued and provide guidance for public investment and other nonregulatory initiatives to assure consistency with the overall goals of the master program.

     Shoreline policies shall be developed through an open comprehensive shoreline planning process. For governments planning under the Growth Management Act, the master program policies are considered a shoreline element of the local comprehensive plan and shall be consistent with the planning goals of RCW 36.70A.020, as well as the act's general and special policy goals set forth in WAC 173-26-176 and 173-26-181.

     At a minimum, shoreline master program policies shall:

     (A) Be consistent with state shoreline management policy goals and specific policies listed in this chapter and the policies of the Shoreline Management Act;

     (B) Address the master program elements of RCW 90.58.100;

     (C) Include policies for environment designations as described in WAC 173-26211. 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; and

     (D) Be designed and implemented in a manner consistent with all relevant constitutional and other legal limitations on the regulation of private property.

     (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 sufficient in scope and detail to ensure the implementation of the Shoreline Management Act, statewide 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 in regard to specific uses, and shoreline modification regulations; and

     (D) Design and implement regulations and mitigation standards in a manner consistent with all relevant constitutional and other legal limitations on the regulation of private property.

     (iii) Administrative provisions.

     (A) Statement of applicability. The Shoreline Management Act's provisions are intended to provide for the management of all development and uses within its jurisdiction, whether or not a shoreline permit is required. Many activities that may not require a substantial development permit, such as clearing vegetation or construction of a residential bulkhead, can, individually or cumulatively, adversely impact adjacent properties and natural resources, including those held in public trust. Local governments have the authority and responsibility to enforce master program regulations on all uses and development in the shoreline area. There has been, historically, some public confusion regarding the Shoreline Management Act's applicability in this regard. Therefore, all master programs shall include the following statement:

     "All proposed uses and development occurring within shoreline jurisdiction must conform to chapter 90.58 RCW, the Shoreline Management Act, and this master program."

     In addition to the requirements of the SMA, permit review, implementation, and enforcement procedures affecting private property must be conducted in a manner consistent with all relevant constitutional and other legal limitations on the regulation of private property. Administrative procedures should include provisions insuring that these requirements and limitations are considered and followed in all such decisions.

     While the master program is a comprehensive use regulation applicable to all land and water areas within the jurisdiction described in the act, its effect is generally on future development and changes in land use. Local government may find it necessary to regulate existing uses to avoid severe harm to public health and safety or the environment and in doing so should be cognizant of constitutional and other legal limitations on the regulation of private property. In some circumstances existing uses and properties may become nonconforming with regard to the regulations and master programs should include provisions to address these situations in a manner consistent with achievement of the policy of the act and consistent with constitutional and other legal limitations.

     (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 include administrative, enforcement, and permit review procedures in the master program or the procedures may be defined by a local government ordinance separate from the master program. In either case, these procedures shall conform to the Shoreline Management Act, specifically RCW 90.58.140, 90.58.143, 90.58.210 and 90.58.220 and to chapter 173-27 WAC.

     Adopting review and enforcement procedures separate from the master program allows local governments to more expeditiously revise their shoreline permit review procedures and to integrate them with other permit processing activities.

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

     Master programs or other local permit review ordinances addressing shoreline project review shall include a mechanism for documenting all project review actions in shoreline areas. Local governments shall also identify a process for periodically evaluating the cumulative effects of authorized development on shoreline conditions. This process could involve a joint effort by local governments, state resource agencies, affected Indian tribes, and other parties.

     (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 its critical area ordinance in the master program to provide for compliance with the requirements of RCW 90.58.090(4), provided the critical area ordinance is also consistent with this chapter. This can ensure that local master programs are consistent with other regulations.

     Shoreline master programs may include other policies and 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 173-26-201 (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.

     (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 exemptions; 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.

     (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 173-26-201 (3)(b), and submit the multijurisdictional master program to the department for approval.

[]

     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 173-26-201   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, or significantly add, change or delete use regulations;

     (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 that must be addressed on a comprehensive basis. This may include issues such as salmon recovery, major use conflicts or public access;

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

     (f) There has been no previous comprehensive master program amendment since the original master program adoption; or

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

     Other revisions that do not meet the above criteria may be made without undertaking this comprehensive process provided that the process conforms to the requirements of WAC 173-26-030 through 173-26-160.

     All master program amendments are subject to approval by the department as provided in RCW 90.58.090 (3) and (4).

     (2) Basic concepts.

     (a) Use of scientific and technical information. To satisfy the requirements for the use of scientific and technical information in RCW 90.58.100(1), 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 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, affected Indian tribes, port districts and private parties for available information. While adequate scientific information and methodology necessary for development of a master program should be available, if any person, including local government, chooses to initiate scientific research with the expectation that it will be used as a basis for master program provisions, that research shall use accepted scientific methods, research procedures and review protocols. Local governments are encouraged to work interactively with neighboring jurisdictions, state resource agencies, affected Indian tribes, and other local government entities such as port districts to address technical issues beyond the scope of existing information resources or locally initiated research.

     Local governments should consult the technical assistance materials produced by the department. When relevant information is available and 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 and the use of which is required by the act.

     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 made concerning, and data gaps in, the scientific information; and

     (iii) Risks to ecological functions associated with master program provisions. Address potential risks as described in WAC 173-26-201 (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 173-26-201 (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.

     (b) Adaptation of policies and regulations. Effective shoreline management requires the evaluation of changing conditions and the modification of policies and regulations to address identified trends and new information. Local governments should monitor actions taken to implement the master program and shoreline conditions to facilitate appropriate updates of master program provisions to improve shoreline management over time. In reviewing proposals to amend master programs, the department shall evaluate whether the change promotes achievement of the policies of the master program and the act. As provided in WAC 173-26-171 (3)(d), ecology will periodically review these guidelines, based in part on information provided by local government, and through that process local government will receive additional guidance on significant shoreline management issues that may require amendments to master programs.

     (c) Protection of ecological functions of the shorelines. This chapter implements the act's policy on protection of shoreline natural resources through protection and restoration of ecological functions necessary to sustain these natural resources. The concept of ecological functions recognizes that any ecological system is composed of a wide variety of interacting physical, chemical and biological components, that are interdependent in varying degrees and scales, and that produce the landscape and habitats as they exist at any time. Ecological functions are the work performed or role played individually or collectively within ecosystems by these components.

     As established in WAC 173-26-186(8), these guidelines are designed to assure, at minimum, no net loss of ecological functions necessary to sustain shoreline natural resources and to plan for restoration of ecological functions where they have been impaired. Managing shorelines for protection of their natural resources depends on sustaining the functions provided by:

     • Ecosystem-wide processes such as those associated with the flow and movement of water, sediment and organic materials; the presence and movement of fish and wildlife and the maintenance of water quality.

     • Individual components and localized processes such as those associated with shoreline vegetation, soils, water movement through the soil and across the land surface and the composition and configuration of the beds and banks of water bodies.

     The loss or degradation of the functions associated with ecosystem-wide processes, individual components and localized processes can significantly impact shoreline natural resources and may also adversely impact human health and safety. Shoreline master programs shall address ecological functions associated with applicable ecosystem-wide processes, individual components and localized processes identified in the ecological systems analysis described in WAC 173-26-201 (3)(d)(i).

     Nearly all shoreline areas, even substantially developed or degraded areas, retain 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, ecosystems are 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 policies for protecting and restoring ecological functions generally apply to all shoreline areas, not just those that remain relatively unaltered.

     Master programs shall contain policies and regulations that assure, at minimum, no net loss of ecological functions necessary to sustain shoreline natural resources. To achieve no net loss of ecological functions as a result of shoreline uses and development, master programs should establish environment designations and associated use provisions consistent with the provisions of these guidelines. Done consistent with these guidelines, this should ensure that development not impair currently functioning habitat or reduce the function of already impaired habitat. Where uses or development that impact ecological functions are necessary to achieve other objectives of RCW 90.58.020, master program provisions shall, to the greatest extent feasible, protect existing ecological functions and avoid new impacts to habitat and ecological functions before implementing other measures designed to achieve no net loss of ecological functions.

     Master programs shall also include policies that promote restoration of ecological functions, as provided in WAC 173-26-201 (2)(f), where such functions are found to have been impaired based on analysis described in WAC 173-26-201 (3)(d)(i). It is intended that local government, through the master program, along with other regulatory and nonregulatory programs, contribute to restoration by planning for and fostering restoration and that such restoration occur through a combination of public and private programs and actions. Local government should identify restoration opportunities through the shoreline inventory process and authorize, coordinate and facilitate appropriate publicly and privately initiated restoration projects within their master programs. The goal of this effort is master programs which include planning elements that, when implemented, serve to improve the overall condition of habitat and resources within the shoreline area of each city and county.

     (d) Preferred uses. As summarized in WAC 173-26-176, the act establishes policy that preference be given to uses that are unique to or dependent upon a shoreline location. 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 and WAC 173-26-171 through 173-26-186, 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 (d)(i) of this subsection. For shorelines of statewide significance, also apply the preferences as indicated in WAC 173-26-251(2).

     (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 reserved for future water-dependent and water-related uses and unless protection of the natural resource values associated with such areas preclude such 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.

     Evaluation pursuant to the above criteria, local economic and land use conditions, and policies and regulations that assure protection of shoreline resources, may result in determination that other uses are considered as necessary or appropriate and may be accommodated provided that the preferred uses are reasonably provided for in the jurisdiction.

     (e) Environmental impact mitigation.

     (i) To assure no net loss of shoreline ecological functions, master programs shall include provisions that require proposed individual uses and developments to analyze environmental impacts of the proposal and include measures to mitigate environmental impacts not otherwise avoided or mitigated by compliance with the master program and other applicable regulations. To the extent Washington's State Environmental Policy Act of 1971 (SEPA), chapter 43.21C RCW, is applicable, the analysis of such environmental impacts shall be conducted consistent with the rules implementing SEPA, which also address environmental impact mitigation in WAC 197-11-660 and define mitigation in WAC 197-11-768. Master programs shall indicate that, where required, mitigation measures shall be applied in the following sequence of steps listed in order of priority, with (e)(i)(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.

     (ii) In determining appropriate mitigation measures applicable to shoreline development, lower priority measures shall be applied only where higher priority measures are determined to be infeasible or inapplicable.

     Consistent with WAC 173-26-186 (5) and (8), master programs shall also provide direction with regard to mitigation for the impact of the development so that:

     (A) Application of the mitigation sequence achieves no net loss of ecological functions for each new development and does not result in required mitigation in excess of that necessary to assure that development will result in no net loss of shoreline ecological functions and not have a significant adverse impact on other shoreline functions fostered by the policy of the act.

     (B) When compensatory measures are appropriate pursuant to the mitigation priority sequence above, preferential consideration shall be given to measures that replace the impacted functions directly and in the immediate vicinity of the impact. However, alternative compensatory mitigation within the watershed that addresses limiting factors or identified critical needs for shoreline resource conservation based on watershed or comprehensive resource management plans applicable to the area of impact may be authorized. Authorization of compensatory mitigation measures may require appropriate safeguards, terms or conditions as necessary to ensure no net loss of ecological functions.

     (f) Shoreline restoration planning. Consistent with principle WAC 173-26-186 (8)(c), master programs shall include goals, policies and actions for restoration of impaired shoreline ecological functions. These master program provisions should be designed to achieve overall improvements in shoreline ecological functions over time, when compared to the status upon adoption of the master program. The approach to restoration planning may vary significantly among local jurisdictions, depending on:

     • The size of the jurisdiction;

     • The extent and condition of shorelines in the jurisdiction;

     • The availability of grants, volunteer programs or other tools for restoration; and

     • The nature of the ecological functions to be addressed by restoration planning.

     Master program restoration plans shall consider and address the following subjects:

     (i) Identify degraded areas, impaired ecological functions, and sites with potential for ecological restoration;

     (ii) Establish overall goals and priorities for restoration of degraded areas and impaired ecological functions;

     (iii) Identify existing and ongoing projects and programs that are currently being implemented, or are reasonably assured of being implemented (based on an evaluation of funding likely in the foreseeable future), which are designed to contribute to local restoration goals;

     (iv) Identify additional projects and programs needed to achieve local restoration goals, and implementation strategies including identifying prospective funding sources for those projects and programs;

     (v) Identify timelines and benchmarks for implementing restoration projects and programs and achieving local restoration goals;

     (vi) Provide for mechanisms or strategies to ensure that restoration projects and programs will be implemented according to plans and to appropriately review the effectiveness of the projects and programs in meeting the overall restoration goals.

     (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.

     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.

     (b) Participation process.

     (i) Participation requirements. Local government shall comply with the provisions of RCW 90.58.130 which 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."

     Additionally, the provisions of WAC 173-26-100 apply and include provisions to assure proper public participation and, 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.

     (ii) Communication with state agencies. Before undertaking substantial work, local governments shall notify applicable state agencies to identify state interests, relevant regional and statewide 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. Gather and incorporate all pertinent and available information, existing inventory data and materials from state agencies, affected Indian tribes, watershed management planning, port districts and other appropriate sources. Ensure that, whenever possible, inventory methods and protocols are consistent with those of neighboring jurisdictions and state efforts. The department will provide, to the extent possible, services and resources for inventory work. Contact the department to determine information sources and other relevant efforts. Map inventory information at an appropriate scale.

     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 statewide 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.

     Local government shall, 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 and utility facilities, including the extent of existing structures, impervious surfaces, vegetation and shoreline modifications in shoreline jurisdiction.

     (ii) Critical areas, including wetlands, aquifer recharge areas, fish and wildlife conservation areas, geologically hazardous areas, and frequently flooded areas, as required by RCW 36.70A.170. See also WAC 173-26-221 (2) and (3).

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

     (iv) Areas of special interest, such as priority habitats, rapidly developing waterfronts, previously identified toxic or hazardous material clean-up 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 and utility corridors.

     (vii) General location of 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. Before establishing specific master program provisions, local governments shall analyze the information gathered in (c) of this subsection and as necessary to ensure effective shoreline management provisions, address the topics below, where applicable.

     (i) Characterization of functions and ecosystem-wide processes.

     (A) Prepare a characterization of shoreline ecosystems and their associated ecological functions. The characterization consists of three steps:

     (I) Identify the ecosystem-wide processes and ecological functions based on the list in (d)(i)(C) of this subsection that apply to the shoreline(s) of the jurisdiction.

     (II) Assess the ecosystem-wide processes to determine their relationship to ecological functions present within the jurisdiction and identify which ecological functions are healthy, which have been significantly altered and/or adversely impacted and which functions may have previously existed and are missing based on the values identified in (d)(i)(D) of this subsection; and

     (III) Identify specific measures necessary to protect and/or restore the ecological functions and ecosystem-wide processes.

     (B) The characterization of shoreline ecological systems may be achieved by using one or more of the approaches below:

     (I) If a regional environmental management plan, such as a watershed plan or coastal erosion study, 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 contribute to an in-depth and comprehensive assessment and characterization.

     (II) If a regional environmental 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 objectives 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 (d)(i)(B)(I) and (II) of this subsection.

     (C) Shoreline ecological functions include, but are not limited to:

     In rivers and streams and associated flood plains:

     Hydrologic: Transport of water and sediment across the natural range of flow variability; attenuating flow energy; developing pools, riffles, gravel bars, recruitment and transport of large woody debris and other organic material.

     Shoreline vegetation: Maintaining temperature; removing excessive nutrients and toxic compound, sediment removal and stabilization; attenuation of flow energy; and provision of large woody debris and other organic matter.

     Hyporheic functions: Removing excessive nutrients and toxic compound, water storage, support of vegetation, and sediment storage and maintenance of base flows.

     Habitat for native aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and anadromous and resident native fish: Habitat functions may include, but are not limited to, space or conditions for reproduction; resting, hiding and migration; and food production and delivery.

     In lakes:

     Hydrologic: Storing water and sediment, attenuating wave energy, removing excessive nutrients and toxic compounds, recruitment of large woody debris and other organic material.

     Shoreline vegetation: Maintaining temperature; removing excessive nutrients and toxic compound, attenuating wave energy, sediment removal and stabilization; and providing woody debris and other organic matter.

     Hyporheic functions: Removing excessive nutrients and toxic compound, water storage, support of vegetation, and sediment storage and maintenance of base flows.

     Habitat for aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and anadromous and resident native fish: Habitat functions may include, but are not limited to, space or conditions for reproduction, resting, hiding and migration; and food production and delivery.

     In marine waters:

     Hydrologic: Transporting and stabilizing sediment, attenuating wave and tidal energy, removing excessive nutrients and toxic compounds; recruitment, redistribution and reduction of woody debris and other organic material.

     Vegetation: Maintaining temperature; removing excessive nutrients and toxic compound, attenuating wave energy, sediment removal and stabilization; and providing woody debris and other organic matter.

     Habitat for aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and anadromous and resident native fish: Habitat functions may include, but are not limited to, space or conditions for reproduction, resting, hiding and migration; and food production and delivery.

     Wetlands:

     Hydrological: Storing water and sediment, attenuating wave energy, removing excessive nutrients and toxic compounds, recruiting woody debris and other organic material.

     Vegetation: Maintaining temperature; removing excessive nutrients and toxic compound, attenuating wave energy, removing and stabilizing sediment; and providing woody debris and other organic matter.

     Hyporheic functions: Removing excessive nutrients and toxic compound, storing water and maintaining base flows, storing sediment and support of vegetation.

     Habitat for aquatic and shoreline-dependent birds, invertebrates, mammals; amphibians; and anadromous and resident native fish: Habitat functions may include, but are not limited to, space or conditions for reproduction, resting, hiding and migration; and food production and delivery.

     (D) The overall condition of habitat and shoreline resources are determined by the following ecosystem-wide processes and ecological functions:

     The distribution, diversity, and complexity of the watersheds, marine environments, and landscape-scale features that form the aquatic systems to which species, populations, and communities are uniquely adapted.

     The spatial and temporal connectivity within and between watersheds and along marine shorelines. Drainage network connections include flood plains, wetlands, upslope areas, headwater tributaries, and naturally functioning routes to areas critical for fulfilling life history requirements of aquatic and riverine-dependent species.

     The shorelines, beaches, banks, marine near-shore habitats, and bottom configurations that provide the physical framework of the aquatic system.

     The timing, volume, and distribution of woody debris recruitment in rivers, streams and marine habitat areas.

     The water quality necessary to maintain the biological, physical, and chemical integrity of the system and support survival, growth, reproduction, and migration of individuals composing aquatic and riverine communities.

     The sediment regime under which aquatic ecosystems evolved. Elements of the sediment regime include the timing, volume, rate, and character of sediment input, storage, and transport.

     The range of flow variability sufficient to create and sustain fluvial, aquatic, and wetland habitats, the patterns of sediment, nutrient, and wood routing. The timing, magnitude, duration, and spatial distribution of peak, high, and low flows, and duration of flood plain inundation and water table elevation in meadows and wetlands.

     The species composition and structural diversity of plant communities in river and stream areas and wetlands that provides summer and winter thermal regulation, nutrient filtering, appropriate rates of surface erosion, bank erosion, and channel migration and to supply amounts and distributions of woody debris sufficient to sustain physical complexity and stability.

     (E) Local governments should use the characterization and analysis called for in this section to prepare master program policies and regulations designed to achieve no net loss of ecological functions necessary to support shoreline resources and to plan for the restoration of the ecosystem-wide processes and individual ecological functions on a comprehensive basis over time.

     (ii) Shoreline use analysis and priorities. Conduct an analysis to estimate the future demand for shoreline space and potential use conflicts. Characterize current shoreline use patterns and projected trends to ensure appropriate uses consistent with chapter 90.58 RCW and WAC 173-26-201 (2)(d) and 173-26-211(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) Addressing cumulative impacts in developing master programs. The principle that regulation of development shall achieve no net loss of ecological function requires that master program policies and regulations address the cumulative impacts on shoreline ecological functions that would result from future shoreline development and uses that are reasonably foreseeable from proposed master programs. To comply with the general obligation to assure no net loss of shoreline ecological function, the process of developing the policies and regulations of a shoreline master program requires assessment of how proposed policies and regulations cause and avoid such cumulative impacts.

     Evaluating and addressing cumulative impacts shall be consistent with the guiding principle in WAC 173-26-186 (8)(d). An appropriate evaluation of cumulative impacts on ecological functions will consider the factors identified in WAC 173-26-186 (8)(d)(i) through (iii) and the effect on the ecological functions of the shoreline that are caused by unregulated activities, development exempt from permitting, effects such as the incremental impact of residential bulkheads, residential piers, or runoff from newly developed properties. Accordingly, particular attention should be paid to policies and regulations that address platting or subdividing of property, laying of utilities, and mapping of streets that establish a pattern for future development that is to be regulated by the master program.

     There are practical limits when evaluating impacts that are prospective and sometimes indirect. Local government should rely on the assistance of state agencies and appropriate parties using evaluation, measurement, estimation, or quantification of impact consistent with the guidance of RCW 90.58.100(1) and WAC 173-26-201 (2)(a). Policies and regulations of a master program are not inconsistent with these guidelines for failing to address cumulative impacts where a purported impact is not susceptible to being addressed using an approach consistent with RCW 90.58.100(1).

     Complying with the above guidelines is the way that master program policies and regulations should be developed to assure that the commonly occurring and foreseeable cumulative impacts do not cause a net loss of ecological functions of the shoreline. For such commonly occurring and planned development, policies and regulations should be designed without reliance on an individualized cumulative impacts analysis. Local government shall fairly allocate the burden of addressing cumulative impacts.

     For development projects that may have unanticipatable or uncommon impacts that cannot be reasonably identified at the time of master program development, the master program policies and regulations should use the permitting or conditional use permitting processes to ensure that all impacts are addressed and that there is no net loss of ecological function of the shoreline after mitigation.

     Similarly, local government shall consider and address cumulative impacts on other functions and uses of the shoreline that are consistent with the act. For example, a cumulative impact of allowing development of docks or piers could be interference with navigation on a water body.

     (iv) Shorelines of statewide significance. If the area contains shorelines of statewide significance, undertake the steps outlined in WAC 173-26-251.

     (v) Public access. Identify public access needs and opportunities within the jurisdiction and explore actions to enhance shoreline recreation facilities, as described in WAC 173-26-221(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, 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 and quantity. 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. 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. Identify measures to ensure that new development meets vegetation conservation objectives.

     (ix) Special area planning. Some shoreline sites or areas require more focused attention than is possible in the overall master program development process due to complex shoreline ecological issues, changing uses, or other unique features or issues. In these circumstances, the local government is encouraged to undertake special area planning. Special area planning also 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 government coordination and permit review. Special area planning shall provide for public and affected Indian tribe participation and compliance with all applicable provisions of the act and WAC 173-26-090 through 173-26-120.

     (e) Establish shoreline policies. Address all of the elements listed in RCW 90.58.100(2) and all applicable provisions of these guidelines in policies. These policies should be reviewed for mutual consistency with the comprehensive plan policies. If there are shorelines of statewide significance, ensure that the other comprehensive plan policies affecting shoreline jurisdiction are consistent with the objectives of RCW 90.58.020 and 90.58.090(4).

     (f) Establish environment designations. Establish environment designations and identify permitted uses and development standards for each environment designation.

     Based on the inventory in (c) of this subsection and the analysis in (d) of this subsection, assign each shoreline segment an environment designation.

     Prepare specific environment designation policies and regulations.

     Review the environment designations for mutual consistency with comprehensive plan land use designations as indicated in WAC 173-26-211(3).

     In determining the boundaries and classifications of environment designations, adhere to the priorities in WAC 173-26-211(5).

     (g) Prepare other shoreline regulations. Prepare other shoreline regulations based on the policies and the analyses described in this section as necessary to assure consistency with the guidelines of this chapter. The level of detail of inventory information and planning analysis will be a consideration in setting shoreline regulations. As a general rule, the less known about existing resources, the more protective shoreline master program provisions should be to avoid unanticipated impacts to shoreline resources. If there is a question about the extent or condition of an existing ecological resource, then the master program provisions shall be sufficient to reasonably assure that the resource is protected in a manner consistent with the policies of these guidelines. Local governments may accomplish this by including master program requirements for an on-site inventory at the time of project application and performance standard that assure appropriate protection.

     (h) Submit for review and approval. Local governments are encouraged to work with department personnel during preparation of the master program and to submit draft master program provisions to the department for informal advice and guidance prior to formal submittal.

     Local governments shall submit the completed checklist, as described in WAC 173-26-201 (3)(a), with their master program amendments proposed for adoption. Master program review and formal adoption procedures are described in Parts I and II of this chapter.

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NEW SECTION
WAC 173-26-211   Environment designation system.   (1) Applicability. This section applies to the establishment of environment designation boundaries and provisions as described in WAC 173-26-191 (1)(d).

     (2) Basic requirements for environment designation classification and provisions.

     (a) Master programs shall contain a system to classify shoreline areas into specific environment designations. This classification system shall be based on the existing use pattern, the biological and physical character of the shoreline, and the goals and aspirations of the community as expressed through comprehensive plans as well as the criteria in this section. Each master program's classification system shall be consistent with that described in WAC 173-26 211 (4) and (5) unless the alternative proposed provides equal or better implementation of the act.

     (b) An up-to-date and accurate map of the shoreline area delineating the environment designations and their boundaries shall be prepared and maintained in the local government office that administers shoreline permits. If it is not feasible to accurately designate individual parcels on a map, the master program text shall include a clear basis for identifying the boundaries, physical features, explicit criteria, or "common" boundary descriptions to accurately define and distinguish the environments on the ground. The master program should also make it clear that in the event of a mapping error, the jurisdiction will rely upon common boundary descriptions and the criteria contained in RCW 90.58.030(2) and chapter 173-22 WAC pertaining to determinations of shorelands, as amended, rather than the incorrect or outdated map.

     (c) To facilitate consistency with land use planning, local governments planning under chapter 36.70A RCW are encouraged to illustrate shoreline designations on the comprehensive plan future land use map as described in WAC 365-195-300 (2)(d).

     (d) Pursuant to RCW 90.58.040, the map should clearly illustrate what environment designations apply to all shorelines of the state as defined in RCW 90.58.030 (2)(c) within the local government's jurisdiction in a manner consistent with WAC 173-26-211 (4) and (5).

     (e) The map and the master program should note that all areas within shoreline jurisdiction that are not mapped and/or designated are automatically assigned a "rural conservancy" designation, or "urban conservancy" designation if within a municipality or urban growth area, or the comparable environment designation of the applicable master program until the shoreline can be redesignated through a master program amendment.

     (f) The following diagram summarizes the components of the environment designation provisions.

Place illustration here.
     (3) Consistency between shoreline environment designations and the local comprehensive plan. As noted in WAC 173-26-191 (1)(e), RCW 90.58.340 requires that policies for lands adjacent to the shorelines be consistent with the Shoreline Management Act, implementing rules, and the applicable master program. Conversely, local comprehensive plans constitute the underlying framework within which master program provisions should fit. The Growth Management Act, where applicable, designates shoreline master program policies as an element of the comprehensive plan and requires that all elements be internally consistent. Chapter 36.70A RCW also requires development regulations to be consistent with the comprehensive plan.

     The following criteria are intended to assist local governments in evaluating the consistency between master program environment designation provisions and the corresponding comprehensive plan elements and development regulations. In order for shoreline designation provisions, local comprehensive plan land use designations, and development regulations to be internally consistent, all three of the conditions below should be met:

     (a) Provisions not precluding one another. The comprehensive plan provisions and shoreline environment designation provisions should not preclude one another. To meet this criteria, the provisions of both the comprehensive plan and the master program must be able to be met. Further, when considered together and applied to any one piece of property, the master program use policies and regulations and the local zoning or other use regulations should not conflict in a manner that all viable uses of the property are precluded.

     (b) Use compatibility. Land use policies and regulations should protect preferred shoreline uses from being impacted by incompatible uses. The intent is to prevent water-oriented uses, especially water-dependent uses, from being restricted on shoreline areas because of impacts to nearby nonwater-oriented uses. To be consistent, master programs, comprehensive plans, and development regulations should prevent new uses that are not compatible with preferred uses from locating where they may restrict preferred uses or development.

     (c) Sufficient infrastructure. Infrastructure and services provided in the comprehensive plan should be sufficient to support allowed shoreline uses. Shoreline uses should not be allowed where the comprehensive plan does not provide sufficient roads, utilities, and other services to support them. Infrastructure plans must also be mutually consistent with shoreline designations. Where they do exist, utility services routed through shoreline areas shall not be a sole justification for more intense development.

     (4) General environment designation provisions.

     (a) Requirements. For each environment designation, the shoreline master program shall describe:

     (i) Purpose statement. The statement of purpose shall describe the shoreline management objectives of the designation in a manner that distinguishes it from other designations.

     (ii) Classification criteria. Clearly stated criteria shall provide the basis for classifying or reclassifying a specific shoreline area with an environment designation.

     (iii) Management policies. These policies shall be in sufficient detail to assist in the interpretation of the environment designation regulations and, for jurisdictions planning under chapter 36.70A RCW, to evaluate consistency with the local comprehensive plan.

     (iv) Regulations. Environment-specific regulations shall address the following where necessary to account for different shoreline conditions:

     (A) Types of shoreline uses permitted, conditionally permitted, and prohibited;

     (B) Building or structure height and bulk limits, setbacks, maximum density or minimum frontage requirements, and site development standards; and

     (C) Other topics not covered in general use regulations that are necessary to assure implementation of the purpose of the environment designation.

     (b) The recommended classification system. The recommended classification system consists of six basic environments: "High-intensity," "shoreline residential," "urban conservancy," "rural conservancy," "natural," and "aquatic" as described in this section and WAC 173-26-211(5). Local governments should assign all shoreline areas an environment designation consistent with the corresponding designation criteria provided for each environment. In delineating environment designations, local government should assure that existing shoreline ecological functions are protected with the proposed pattern and intensity of development. Such designations should also be consistent with policies for restoration of degraded shorelines.

     (c) Alternative systems.

     (i) Local governments may establish a different designation system or may retain their current environment designations, provided it is consistent with the purposes and policies of this section and WAC 173-26-211(5).

     (ii) Local governments may use "parallel environments" where appropriate. Parallel environments divide shorelands into different sections generally running parallel to the shoreline or along a physical feature such as a bluff or railroad right of way. Such environments may be useful, for example, to accommodate resource protection near the shoreline and existing development further from the shoreline. Where parallel environments are used, developments and uses allowed in one environment should not be inconsistent with the achieving the purposes of the other.

     (5) The designations.

     (a) "Natural" environment.

     (i) Purpose. The purpose of the "natural" environment is to protect those shoreline areas that are relatively free of human influence or that include intact or minimally degraded shoreline functions intolerant of human use. These systems require that only very low intensity uses be allowed in order to maintain the ecological functions and ecosystem-wide processes. Consistent with the policies of the designation, local government should include planning for restoration of degraded shorelines within this environment.

     (ii) Management policies.

     (A) Any use that would substantially degrade the ecological functions or natural character of the shoreline area should not be allowed.

     (B) The following new uses should not be allowed in the "natural" environment:

     • Commercial uses.

     • Industrial uses.

     • Nonwater-oriented recreation.

     • Roads, utility corridors, and parking areas that can be located outside of "natural" designated shorelines.

     (C) Single-family residential development may be allowed as a conditional use within the "natural" environment if the density and intensity of such use is limited as necessary to protect ecological functions and be consistent with the purpose of the environment.

     (D) Commercial forestry may be allowed as a conditional use in the "natural" environment provided it meets the conditions of the State Forest Practices Act and its implementing rules and is conducted in a manner consistent with the purpose of this environment designation.

     (E) Agricultural uses of a very low intensity nature may be consistent with the natural environment when such use is subject to appropriate limitations or conditions to assure that the use does not expand or alter practices in a manner inconsistent with the purpose of designation.

     (F) Scientific, historical, cultural, educational research uses, and low-intensity water-oriented recreational access uses may be allowed provided that no significant ecological impact on the area will result.

     (G) New development or significant vegetation removal that would reduce the capability of vegetation to perform normal ecological functions should not be allowed. Do not allow the subdivision of property in a configuration that, to achieve its intended purpose, will require significant vegetation removal or shoreline modification that adversely impacts ecological functions. That is, each new parcel must be able to support its intended development without significant ecological impacts to the shoreline ecological functions.

     (iii) Designation criteria. A "natural" environment designation should be assigned to shoreline areas if any of the following characteristics apply:

     (A) The shoreline is ecologically intact and therefore currently performing an important, irreplaceable function or ecosystem-wide process that would be damaged by human activity;

     (B) The shoreline is considered to represent ecosystems and geologic types that are of particular scientific and educational interest; or

     (C) The shoreline is unable to support new development or uses without significant adverse impacts to ecological functions or risk to human safety.

     Such shoreline areas include largely undisturbed portions of shoreline areas such as wetlands, estuaries, unstable bluffs, coastal dunes, spits, and ecologically intact shoreline habitats. Shorelines inside or outside urban growth areas may be designated as "natural."

     Ecologically intact shorelines, as used here, 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. Generally, but not necessarily, ecologically intact shorelines are free of structural shoreline modifications, structures, and intensive human uses. In 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.

     Areas with significant existing agriculture lands should not be included in the "natural" designation, except where the existing agricultural operations involve very low intensity uses where there is no significant impact on natural ecological functions, and where the intensity or impacts associated with such agriculture activities is unlikely to expand in a manner inconsistent with the "natural" designation.

     (b) "Rural conservancy" environment.

     (i) Purpose. The purpose of the "rural conservancy" environment is to protect ecological functions, conserve existing natural resources and valuable historic and cultural areas in order to provide for sustained resource use, achieve natural flood plain processes, and provide recreational opportunities. Examples of uses that are appropriate in a "rural conservancy" environment include low-impact outdoor recreation uses, timber harvesting on a sustained-yield basis, agricultural uses, aquaculture, low-intensity residential development and other natural resource-based low-intensity uses.

     (ii) Management policies.

     (A) Uses in the "rural conservancy" environment should be limited to those which sustain the shoreline area's physical and biological resources and uses of a nonpermanent nature that do not substantially degrade ecological functions or the rural or natural character of the shoreline area.

     Except as noted, commercial and industrial uses should not be allowed. Agriculture, commercial forestry, and aquaculture when consistent with provisions of this chapter may be allowed. Low-intensity, water-oriented commercial and industrial uses may be permitted in the limited instances where those uses have located in the past or at unique sites in rural communities that possess shoreline conditions and services to support the development.

     Water-dependent and water-enjoyment recreation facilities that do not deplete the resource over time, such as boating facilities, angling, hunting, wildlife viewing trails, and swimming beaches, are preferred uses, provided significant adverse impacts to the shoreline are mitigated.

     Mining is a unique use as a result of its inherent linkage to geology. Therefore, mining and related activities may be an appropriate use within the rural conservancy environment when conducted in a manner consistent with the environment policies and the provisions of WAC 173-26-241 (3)(h) and when located consistent with mineral resource lands designation criteria pursuant to RCW 36.70A.170 and WAC 365-190-070.

     (B) Developments and uses that would substantially degrade or permanently deplete the biological resources of the area should not be allowed.

     (C) Construction of new structural shoreline stabilization and flood control works should only be allowed where there is a documented need to protect an existing structure or ecological functions and mitigation is applied, consistent with WAC 173-26-231. New development should be designed and located to preclude the need for such work.

     (D) Residential development standards shall ensure no net loss of shoreline ecological functions and should preserve the existing character of the shoreline consistent with the purpose of the environment. As a general matter, meeting this provision will require density, lot coverage, vegetation conservation and other provisions.

     Scientific studies support density or lot coverage limitation standards that assure that development will be limited to a maximum of ten percent total impervious surface area within the lot or parcel, will maintain the existing hydrologic character of the shoreline. However, an alternative standard developed based on scientific information that meets the provisions of this chapter and accomplishes the purpose of the environment designation may be used.

     Master programs may allow greater lot coverage to allow development of lots legally created prior to the adoption of a master program prepared under these guidelines. In these instances, master programs shall include measures to assure protection of ecological functions to the extent feasible such as requiring that lot coverage is minimized and vegetation is conserved.

     (E) New shoreline stabilization, flood control measures, vegetation removal, and other shoreline modifications should be designed and managed consistent with these guidelines to ensure that the natural shoreline functions are protected. Such shoreline modification should not be inconsistent with planning provisions for restoration of shoreline ecological functions.

     (iii) Designation criteria. Assign a "rural conservancy" environment designation to shoreline areas outside incorporated municipalities and outside urban growth areas, as defined by RCW 36.70A.110, if any of the following characteristics apply:

     (A) The shoreline is currently supporting lesser-intensity resource-based uses, such as agriculture, forestry, or recreational uses, or is designated agricultural or forest lands pursuant to RCW 36.70A.170;

     (B) The shoreline is currently accommodating residential uses outside urban growth areas and incorporated cities or towns;

     (C) The shoreline is supporting human uses but subject to environmental limitations, such as properties that include or are adjacent to steep banks, feeder bluffs, or flood plains or other flood-prone areas;

     (D) The shoreline is of high recreational value or with unique historic or cultural resources; or

     (E) The shoreline has low-intensity water-dependent uses.

     Areas designated in a local comprehensive plan as "rural areas of more intense development," as provided for in chapter 36.70A RCW, may be designated an alternate shoreline environment, provided it is consistent with the objectives of the Growth Management Act and this chapter. "Master planned resorts" as described in RCW 36.70A.360 may be designated an alternate shoreline environment, provided the applicable master program provisions do not allow significant ecological impacts.

     Lands that may otherwise qualify for designation as rural conservancy and which are designated as "mineral resource lands" pursuant to RCW 36.70A.170 and WAC 365-190-070 may be assigned a designation within the "rural conservancy" environment that allows mining and associated uses in addition to other uses consistent with the rural conservancy environment.

     (c) "Aquatic" environment.

     (i) Purpose. The purpose of the "aquatic" environment is to protect, restore, and manage the unique characteristics and resources of the areas waterward of the ordinary high-water mark.

     (ii) Management policies.

     (A) Allow new over-water structures only for water-dependent uses, public access, or ecological restoration.

     (B) The size of new over-water structures should be limited to the minimum necessary to support the structure's intended use.

     (C) In order to reduce the impacts of shoreline development and increase effective use of water resources, multiple use of over-water facilities should be encouraged.

     (D) All developments and uses on navigable waters or their beds should be located and designed to minimize interference with surface navigation, to consider impacts to public views, and to allow for the safe, unobstructed passage of fish and wildlife, particularly those species dependent on migration.

     (E) Uses that adversely impact the ecological functions of critical saltwater and freshwater habitats should not be allowed except where necessary to achieve the objectives of RCW 90.58.020, and then only when their impacts are mitigated according to the sequence described in WAC 173-26-201 (2)(e) as necessary to assure no net loss of ecological functions.

     (F) Shoreline uses and modifications should be designed and managed to prevent degradation of water quality and alteration of natural hydrographic conditions.

     (iii) Designation criteria. Assign an "aquatic" environment designation to lands waterward of the ordinary high-water mark.

     Local governments may designate submerged and intertidal lands with shoreland designations (e.g., "high-intensity" or "rural conservancy") if the management policies and objectives for aquatic areas are met. In this case, the designation system used must provide regulations for managing submerged and intertidal lands that are clear and consistent with the "aquatic" environment management policies in this chapter. Additionally, local governments may assign an "aquatic" environment designation to wetlands.

     (d) "High-intensity" environment.

     (i) Purpose. The purpose of the "high-intensity" environment is to provide for high-intensity water-oriented commercial, transportation, and industrial uses while protecting existing ecological functions and restoring ecological functions in areas that have been previously degraded.

     (ii) Management policies.

     (A) In regulating uses in the "high-intensity" environment, first priority should be given to water-dependent uses. Second priority should be given to water-related and water-enjoyment uses. Nonwater-oriented uses should not be allowed except as part of mixed use developments. Nonwater-oriented uses may also be allowed in limited situations where they do not conflict with or limit opportunities for water-oriented uses or on sites where there is no direct access to the shoreline. Such specific situations should be identified in shoreline use analysis or special area planning, as described in WAC 173-26-200 (3)(d).

     If an analysis of water-dependent use needs as described in WAC 173-26-201 (3)(d)(ii) demonstrates the needs of existing and envisioned water-dependent uses for the planning period are met, then provisions allowing for a mix of water-dependent and nonwater-dependent uses may be established. If those shoreline areas also provide ecological functions, apply standards to assure no net loss of those functions.

     (B) Full utilization of existing urban areas should be achieved before further expansion of intensive development is allowed. Reasonable long-range projections of regional economic need should guide the amount of shoreline designated "high-intensity." However, consideration should be given to the potential for displacement of nonwater-oriented uses with water-oriented uses when analyzing full utilization of urban waterfronts and before considering expansion of such areas.

     (C) Policies and regulations shall assure no net loss of shoreline ecological functions as a result of new development. Where applicable, new development shall include environmental cleanup and restoration of the shoreline to comply in accordance with any relevant state and federal law.

     (D) Where feasible, visual and physical public access should be required as provided for in WAC 173-26-221 (4)(d).

     (E) Aesthetic objectives should be implemented by means such as sign control regulations, appropriate development siting, screening and architectural standards, and maintenance of natural vegetative buffers.

     (iii) Designation criteria. Assign a "high-intensity" environment designation to shoreline areas within incorporated municipalities, urban growth areas, and industrial or commercial "rural areas of more intense development," as described by RCW 36.70A.070, if they currently support or are suitable and planned for high-intensity water-dependent uses related to commerce, transportation, or navigation.

     (e) "Urban conservancy" environment.

     (i) Purpose. The purpose of the "urban conservancy" environment is to protect and restore ecological functions of open space, flood plain and other sensitive lands where they exist in urban and developed settings, while allowing a variety of compatible uses.

     (ii) Management policies.

     (A) Uses that preserve the natural character of the area or promote preservation of open space, flood plain or sensitive lands either directly or over the long term should be the primary allowed uses. Uses that result in restoration of ecological functions should be allowed if the use is otherwise compatible with the purpose of the environment and the setting.

     (B) Standards should be established for shoreline stabilization measures, vegetation conservation, water quality, and shoreline modifications within the "urban conservancy" designation. These standards shall ensure that new development does not result in a net loss of shoreline ecological functions or further degrade other shoreline values.

     (C) Public access and public recreation objectives should be implemented whenever feasible and significant ecological impacts can be mitigated.

     (D) Water-oriented uses should be given priority over nonwater-oriented uses. For shoreline areas adjacent to commercially navigable waters, water-dependent uses should be given highest priority.

     (E) Mining is a unique use as a result of its inherent linkage to geology. Therefore, mining and related activities may be an appropriate use within the urban conservancy environment when conducted in a manner consistent with the environment policies and the provisions of WAC 173-26-240 (3)(h) and when located consistent with mineral resource lands designation criteria pursuant to RCW 36.70A.170 and WAC 365-190-070.

     (iii) Designation criteria. Assign an "urban conservancy" environment designation to shoreline areas appropriate and planned for development that is compatible with maintaining or restoring of the ecological functions of the area, that are not generally suitable for water-dependent uses and that lie in incorporated municipalities, urban growth areas, or commercial or industrial "rural areas of more intense development" if any of the following characteristics apply:

     (A) They are suitable for water-related or water-enjoyment uses;

     (B) They are open space, flood plain or other sensitive areas that should not be more intensively developed;

     (C) They have potential for ecological restoration;

     (D) They retain important ecological functions, even though partially developed; or

     (E) They have the potential for development that is compatible with ecological restoration.

     Lands that may otherwise qualify for designation as urban conservancy and which are designated as "mineral resource lands" pursuant to RCW 36.70A.170 and WAC 365-190-070 may be assigned a designation within the "urban conservancy" environment that allows mining and associated uses in addition to other uses consistent with the urban conservancy environment.

     (f) "Shoreline residential" environment.

     (i) Purpose. The purpose of the "shoreline residential" environment is to accommodate residential development and appurtenant structures that are consistent with this chapter. An additional purpose is to provide appropriate public access and recreational uses.

     (ii) Management policies.

     (A) Standards for density or minimum frontage width, setbacks, lot coverage limitations, buffers, shoreline stabilization, vegetation conservation, critical area protection, and water quality shall be set to assure no net loss of shoreline ecological functions, taking into account the environmental limitations and sensitivity of the shoreline area, the level of infrastructure and services available, and other comprehensive planning considerations.

     Local governments may establish two or more different "shoreline residential" environments to accommodate different shoreline densities or conditions, provided both environments adhere to the provisions in this chapter.

     (B) Multifamily and multilot residential and recreational developments should provide public access and joint use for community recreational facilities.

     (C) Access, utilities, and public services should be available and adequate to serve existing needs and/or planned future development.

     (D) Commercial development should be limited to water-oriented uses.

     (iii) Designation criteria. Assign a "shoreline residential" environment designation to shoreline areas inside urban growth areas, as defined in RCW 36.70A.110, incorporated municipalities, "rural areas of more intense development," or "master planned resorts," as described in RCW 36.70A.360, if they are predominantly single-family or multifamily residential development or are planned and platted for residential development.

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NEW SECTION
WAC 173-26-221   General master program provisions.   The provisions of this section shall be applied either generally to all shoreline areas or to shoreline areas that meet the specified criteria of the provision without regard to environment designation. These provisions address certain elements as required by RCW 90.58.100(2) and implement the principles as established in WAC 173-26-186.

     (1) Archaeological and historic resources.

     (a) Applicability. The following provisions apply to archaeological and historic resources that are either recorded at the state historic preservation office and/or by local jurisdictions or have been inadvertently uncovered. Archaeological sites located both in and outside shoreline jurisdiction are subject to chapter 27.44 RCW (Indian graves and records) and chapter 27.53 RCW (Archaeological sites and records) and development or uses that may impact such sites shall comply with chapter 25-48 WAC as well as the provisions of this chapter.

     (b) Principles. Due to the limited and irreplaceable nature of the resource(s), prevent the destruction of or damage to any site having historic, cultural, scientific, or educational value as identified by the appropriate authorities, including affected Indian tribes, and the office of archaeology and historic preservation.

     (c) Standards. Local shoreline master programs shall include policies and regulations to protect historic, archaeological, and cultural features and qualities of shorelines and implement the following standards. A local government may reference historic inventories or regulations. Contact the office of archaeology and historic preservation and affected Indian tribes for additional information.

     (i) Require that developers and property owners immediately stop work and notify the local government, the office of archaeology and historic preservation and affected Indian tribes if archaeological resources are uncovered during excavation.

     (ii) Require that permits issued in areas documented to contain archaeological resources require a site inspection or evaluation by a professional archaeologist in coordination with affected Indian tribes.

     (2) Critical areas.

     (a) Applicability. Pursuant to the provisions of RCW 90.58.090(4) as amended by chapter 321, Laws of 2003 (ESHB 1933), shoreline master programs must provide for management of critical areas located within the shorelines of the state:

     (i) In a manner consistent with these guidelines; and

     (ii) In a manner that provides a level of protection to critical areas within the shoreline area that is at least equal to that provided by the local government's critical area regulations adopted pursuant to the Growth Management Act for areas other than shorelines.

     The provisions of this subsection and subsection (3) of this section, flood hazard reduction, shall be applied to critical areas, as defined by chapter 36.70A RCW within the shorelines of the state. Implementation of RCW 90.58.020 includes the management of critical areas in the shoreline in order to protect human health and safety and the state's natural resources. RCW 36.70A.030 defines critical areas as stated below:

     ""Critical areas" include the following areas and ecosystems:

     (a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable waters; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas."

     The provisions of WAC 365-190-080, to the extent consistent with these provisions, are also applicable to and provide further definition of critical area categories and management policies.

     (b) Principles. Local master programs, when addressing critical areas, shall implement the following principles:

     (i) Shoreline master programs shall adhere to the standards established in the following sections, unless it is demonstrated through scientific and technical information as provided in RCW 90.58.100(1) and as described in WAC 173-26-201 (2)(a) that an alternative approach provides better resource protection.

     (ii) In addressing issues related to critical areas, use scientific and technical information, as described in WAC 173-26-201 (2)(a). Local government should be aware of parallel requirements of the Growth Management Act regarding best available science, which are provided for in chapter 36.70A RCW. The role of ecology in reviewing master program provisions for critical areas in shorelines of the state will be based on the Shoreline Management Act and these guidelines.

     (iii) In protecting and restoring critical areas within shoreline jurisdiction, integrate the full spectrum of planning and regulatory measures, including the comprehensive plan, interlocal watershed plans, local development regulations, and state, tribal, and federal programs.

     (iv) The planning objectives of shoreline management provisions for critical areas shall be the protection of existing ecological functions and ecosystem-wide processes and restoration of degraded ecological functions and ecosystem-wide processes. The regulatory provisions for critical areas shall protect existing ecological functions and ecosystem-wide processes.

     (v) Promote human uses and values that are compatible with the other objectives of this section, such as public access and aesthetic values, provided they do not significantly adversely impact ecological functions.

     (vi) Implement, where applicable and consistent with the objectives of the Shoreline Management Act, the minimum guidelines in WAC 365-190-080 and assure that the protection afforded to critical areas within the shorelines of the state is at least equal to the level of protection provided for nonshoreline critical areas within any one jurisdiction.

     (c) Standards. When preparing master program provisions for critical areas, local governments should implement the following standards and the provisions of WAC 365-190-080 and use scientific and technical information, as provided for in WAC 173-26-201 (2)(a).

     In reviewing the critical areas segment of a master program, the department of ecology shall first assure consistency with these standards, and shall then assure that the master program also provides protection of critical areas that is at least equal to the protection provided by the local governments approved and valid critical area regulations in effect at the time of submittal of the SMP.

     In conducting the review for equivalency with local regulations, the department shall not further evaluate the adequacy of the local critical area regulations. Incorporation of the approved and valid critical area regulations in effect at the time of submittal by reference as provided in WAC 173-26-191 (2)(b) shall be deemed to meet the requirement for equivalency.

     Note that provisions for frequently flooded areas are included in WAC 173-26-221(3).

     (i) Wetlands.

     (A) Wetland use regulations. Local governments should consult the department's technical guidance documents on wetlands.

     Regulations shall address the following uses to achieve, at a minimum, no net loss of wetland area and functions, including lost time when the wetland does not perform the function:

     • The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

     • The dumping, discharging, or filling with any material, including discharges of storm water and domestic, commercial, or industrial wastewater;

     • The draining, flooding, or disturbing of the water level, duration of inundation, or water table;

     • The driving of pilings;

     • The placing of obstructions;

     • The construction, reconstruction, demolition, or expansion of any structure;

     • Significant vegetation removal, provided that these activities are not part of a forest practice governed under chapter 76.09 RCW and its rules;

     • Other uses or development that results in a significant ecological impact to the physical, chemical, or biological characteristics of wetlands; or

     • Activities reducing the functions of buffers described in (c)(i)(D) of this subsection.

     (B) Wetland rating or categorization. Wetlands shall be categorized based on the rarity, irreplaceability, or sensitivity to disturbance of a wetland and the functions the wetland provides. Local governments should either use the Washington state wetland rating system, Eastern or Western Washington version as appropriate, or they should develop their own, regionally specific, scientifically based method for categorizing wetlands. Wetlands should be categorized to reflect differences in wetland quality and function in order to tailor protection standards appropriately. A wetland categorization method is not a substitute for a function assessment method, where detailed information on wetland functions is needed.

     (C) Alterations to wetlands. Master program provisions addressing alterations to wetlands shall be consistent with the policy of no net loss of wetland area and functions, wetland rating, scientific and technical information, and the mitigation priority sequence defined in WAC 173-26-020.

     (D) Buffers. Master programs shall contain requirements for buffer zones around wetlands. Buffer requirements shall be adequate to ensure that wetland functions are protected and maintained in the long term. Requirements for buffer zone widths and management shall take into account the ecological functions of the wetland, the characteristics and setting of the buffer, the potential impacts associated with the adjacent land use, and other relevant factors.

     (E) Mitigation. Master programs shall contain wetland mitigation requirements that are consistent with WAC 173-26-201 (2)(e) and which are based on the wetland rating.

     (F) Compensatory mitigation. Compensatory mitigation shall be allowed only after mitigation sequencing is applied and higher priority means of mitigation are determined to be infeasible.

     Requirements for compensatory mitigation must include provisions for:

     (I) Mitigation replacement ratios or a similar method of addressing the following:

     • The risk of failure of the compensatory mitigation action;

     • The length of time it will take the compensatory mitigation action to adequately replace the impacted wetland functions and values;

     • The gain or loss of the type, quality, and quantity of the ecological functions of the compensation wetland as compared with the impacted wetland.

     (II) Establishment of performance standards for evaluating the success of compensatory mitigation actions;

     (III) Establishment of long-term monitoring and reporting procedures to determine if performance standards are met; and

     (IV) Establishment of long-term protection and management of compensatory mitigation sites.

     Credits from a certified mitigation bank may be used to compensate for unavoidable impacts.

     (ii) Geologically hazardous areas. Development in designated geologically hazardous areas shall be regulated in accordance with the following:

     (A) Consult minimum guidelines for geologically hazardous areas, WAC 365-190-080(4).

     (B) Do not allow new development or the creation of new lots that would cause foreseeable risk from geological conditions to people or improvements during the life of the development.

     (C) Do not allow new development that would require structural shoreline stabilization over the life of the development. Exceptions may be made for the limited instances where stabilization is necessary to protect allowed uses where no alternative locations are available and no net loss of ecological functions will result. The stabilization measures shall conform to WAC 173-26-231.

     (D) Where no alternatives, including relocation or reconstruction of existing structures, are found to be feasible, and less expensive than the proposed stabilization measure, stabilization structures or measures to protect existing primary residential structures may be allowed in strict conformance with WAC 173-26-231 requirements and then only if no net loss of ecological functions will result.

     (iii) Critical saltwater habitats.

     (A) Applicability. Critical saltwater habitats include all kelp beds, eelgrass beds, spawning and holding areas for forage fish, such as herring, smelt and sandlance, commercial and recreational shellfish beds, mudflats, intertidal habitats with vascular plants, and areas with which priority species have a primary association. Critical saltwater habitats require a higher level of protection due to the important ecological functions they provide. Ecological functions of marine shorelands can affect the viability of critical saltwater habitats. Therefore, effective protection and restoration of critical saltwater habitats should integrate management of shorelands as well as submerged areas.

     (B) Principles. Master programs shall include policies and regulations to protect critical saltwater habitats and should implement planning policies and programs to restore such habitats. Planning for critical saltwater habitats shall incorporate the participation of state resource agencies to assure consistency with other legislatively created programs in addition to local and regional government entities with an interest such as port districts. Affected Indian tribes shall also be consulted. Local governments should review relevant comprehensive management plan policies and development regulations for shorelands and adjacent lands to achieve consistency as directed in RCW 90.58.340. Local governments should base management planning on information provided by state resource agencies and affected Indian tribes unless they demonstrate that they possess more accurate and reliable information.

     The management planning should include an evaluation of current data and trends regarding the following:

     • Available inventory and collection of necessary data regarding physical characteristics of the habitat, including upland conditions, and any information on species population trends;

     • Terrestrial and aquatic vegetation;

     • The level of human activity in such areas, including the presence of roads and level of recreational types (passive or active recreation may be appropriate for certain areas and habitats);

     • Restoration potential;

     • Tributaries and small streams flowing into marine waters;

     • Dock and bulkhead construction, including an inventory of bulkheads serving no protective purpose;

     • Conditions and ecological functions in the near-shore area;

     • Uses surrounding the critical saltwater habitat areas that may negatively impact those areas, including permanent or occasional upland, beach, or over-water uses; and

     • An analysis of what data gaps exist and a strategy for gaining this information.

     The management planning should address the following, where applicable:

     • Protecting a system of fish and wildlife habitats with connections between larger habitat blocks and open spaces and restoring such habitats and connections where they are degraded;

     • Protecting existing and restoring degraded riparian and estuarine ecosystems, especially salt marsh habitats;

     • Establishing adequate buffer zones around these areas to separate incompatible uses from the habitat areas;

     • Protecting existing and restoring degraded near-shore habitat;

     • Protecting existing and restoring degraded or lost salmonid habitat;

     • Protecting existing and restoring degraded upland ecological functions important to critical saltwater habitats, including riparian vegetation;

     • Improving water quality;

     • Protecting existing and restoring degraded sediment inflow and transport regimens; and

     • Correcting activities that cause excessive sediment input where human activity has led to mass wasting.

     Local governments, in conjunction with state resource agencies and affected Indian tribes, should classify critical saltwater habitats and protect and restore seasonal ranges and habitat elements with which federal-listed and state-listed endangered, threatened, and priority species have a primary association and which, if altered, may reduce the likelihood that a species will maintain its population and reproduce over the long term.

     Local governments, in conjunction with state resource agencies and affected Indian tribes, should determine which habitats and species are of local importance.

     All public and private tidelands or bedlands suitable for shellfish harvest shall be classified as critical areas. Local governments should consider both commercial and recreational shellfish areas. Local governments should review the Washington department of health classification of commercial and recreational shellfish growing areas to determine the existing condition of these areas. Further consideration should be given to the vulnerability of these areas to contamination or potential for recovery. Shellfish protection districts established pursuant to chapter 90.72 RCW shall be included in the classification of critical shellfish areas. Local governments shall classify kelp and eelgrass beds identified by the department of natural resources' aquatic resources division, the department, and affected Indian tribes as critical saltwater habitats.

     Comprehensive saltwater habitat management planning should identify methods for monitoring conditions and adapting management practices to new information.

     (C) Standards. Docks, bulkheads, bridges, fill, floats, jetties, utility crossings, and other human-made structures shall not intrude into or over critical saltwater habitats except when all of the conditions below are met:

     • The public's need for such an action or structure is clearly demonstrated and the proposal is consistent with protection of the public trust, as embodied in RCW 90.58.020;

     • Avoidance of impacts to critical saltwater habitats by an alternative alignment or location is not feasible or would result in unreasonable and disproportionate cost to accomplish the same general purpose;

     • The project including any required mitigation, will result in no net loss of ecological functions associated with critical saltwater habitat.

     • The project is consistent with the state's interest in resource protection and species recovery.

     Private, noncommercial docks for individual residential or community use may be authorized provided that:

     • Avoidance of impacts to critical saltwater habitats by an alternative alignment or location is not feasible;

     • The project including any required mitigation, will result in no net loss of ecological functions associated with critical saltwater habitat.

     Until an inventory of critical saltwater habitat has been done, shoreline master programs shall condition all over-water and near-shore developments in marine and estuarine waters with the requirement for an inventory of the site and adjacent beach sections to assess the presence of critical saltwater habitats and functions. The methods and extent of the inventory shall be consistent with accepted research methodology. At a minimum, local governments should consult with department technical assistance materials for guidance.

     (iv) Critical freshwater habitats.

     (A) Applicability. The following applies to master program provisions affecting critical freshwater habitats, including those portions of streams, rivers, wetlands, and lakes, their associated channel migration zones, and flood plains designated as such.

     (B) Principles. Many ecological functions of river and stream corridors depend both on continuity and connectivity along the length of the shoreline and on the conditions of the surrounding lands on either side of the river channel. Environmental degradation caused by development such as improper storm water sewer or industrial outfalls, unmanaged clearing and grading, or runoff from buildings and parking lots within the watershed, can degrade ecological functions downstream. Likewise, gradual destruction or loss of the vegetation, alteration of runoff quality and quantity along the corridor resulting from incremental flood plain development can raise water temperatures and alter hydrographic conditions and degrade other ecological functions, thereby making the corridor inhospitable for priority species and susceptible to catastrophic flooding, droughts, landslides and channel changes. These conditions also threaten human health, safety, and property. Long stretches of river and stream shorelines have been significantly altered or degraded in this manner. Therefore, effective management of river and stream corridors depends on:

     (I) Planning for protection, and restoration where appropriate, along the entire length of the corridor from river headwaters to the mouth; and

     (II) Regulating uses and development within the stream channel, associated channel migration zone, wetlands, and the flood plain, to the extent such areas are in the shoreline jurisdictional area, as necessary to assure no net loss of ecological functions associated with the river or stream corridors, including the associated hyporheic zone, results from new development.

     As part of a comprehensive approach to management of critical freshwater habitat and other river and stream values, local governments should integrate master program provisions, including those for shoreline stabilization, fill, vegetation conservation, water quality, flood hazard reduction, and specific uses, to protect human health and safety and to protect and restore the corridor's ecological functions and ecosystem-wide processes.

     Applicable master programs shall contain provisions to protect hydrologic connections between water bodies, water courses, and associated wetlands. Restoration planning should include incentives and other means to restore water connections that have been impeded by previous development.

     Master program provisions for river and stream corridors should, where appropriate, be based on the information from comprehensive watershed management planning where available.

     (C) Standards. Master programs shall implement the following standards within shoreline jurisdiction:

     (I) Provide for the protection of ecological functions associated with critical freshwater habitat as necessary to assure no net loss.

     (II) Where appropriate, integrate protection of critical freshwater habitat, protection with flood hazard reduction and other river and stream management provisions.

     (III) Include provisions that facilitate authorization of appropriate restoration projects.

     (IV) Provide for the implementation of the principles identified in (c)(iv)(B) of this subsection.

     (3) Flood hazard reduction.

     (a) Applicability. The following provisions apply to actions taken to reduce flood damage or hazard and to uses, development, and shoreline modifications that may increase flood hazards. Flood hazard reduction measures may consist of nonstructural measures, such as setbacks, land use controls, wetland restoration, dike removal, use relocation, biotechnical measures, and storm water management programs, and of structural measures, such as dikes, levees, revetments, floodwalls, channel realignment, and elevation of structures consistent with the National Flood Insurance Program. Additional relevant critical area provisions are in WAC 173-26-221(2).

     (b) Principles. Flooding of rivers, streams, and other shorelines is a natural process that is affected by factors and land uses occurring throughout the watershed. Past land use practices have disrupted hydrological processes and increased the rate and volume of runoff, thereby exacerbating flood hazards and reducing ecological functions. Flood hazard reduction measures are most effective when integrated into comprehensive strategies that recognize the natural hydrogeological and biological processes of water bodies. Over the long term, the most effective means of flood hazard reduction is to prevent or remove development in flood-prone areas, to manage storm water within the flood plain, and to maintain or restore river and stream system's natural hydrological and geomorphological processes.

     Structural flood hazard reduction measures, such as diking, even if effective in reducing inundation in a portion of the watershed, can intensify flooding elsewhere. Moreover, structural flood hazard reduction measures can damage ecological functions crucial to fish and wildlife species, bank stability, and water quality. Therefore, structural flood hazard reduction measures shall be avoided whenever possible. When necessary, they shall be accomplished in a manner that assures no net loss of ecological functions and ecosystem-wide processes.

     The dynamic physical processes of rivers, including the movement of water, sediment and wood, cause the river channel in some areas to move laterally, or "migrate," over time. This is a natural process in response to gravity and topography and allows the river to release energy and distribute its sediment load. The area within which a river channel is likely to move over a period of time is referred to as the channel migration zone (CMZ) or the meander belt. Scientific examination as well as experience has demonstrated that interference with this natural process often has unintended consequences for human users of the river and its valley such as increased or changed flood, sedimentation and erosion patterns. It also has adverse effects on fish and wildlife through loss of critical habitat for river and riparian dependent species. Failing to recognize the process often leads to damage to, or loss of, structures and threats to life safety.

     Applicable shoreline master programs should include provisions to limit development and shoreline modifications that would result in interference with the process of channel migration that may cause significant adverse impacts to property or public improvements and/or result in a net loss of ecological functions associated with the rivers and streams. (See also (c) of this subsection.)

     The channel migration zone should be established to identify those areas with a high probability of being subject to channel movement based on the historic record, geologic character and evidence of past migration. It should also be recognized that past action is not a perfect predictor of the future and that human and natural changes may alter migration patterns. Consideration should be given to such changes that may have occurred and their effect on future migration patterns.

     For management purposes, the extent of likely migration along a stream reach can be identified using evidence of active stream channel movement over the past one hundred years. Evidence of active movement can be provided from historic and current aerial photos and maps and may require field analysis of specific channel and valley bottom characteristics in some cases. A time frame of one hundred years was chosen because aerial photos, maps and field evidence can be used to evaluate movement in this time frame.

     In some cases, river channels are prevented from normal or historic migration by human-made structures or other shoreline modifications. The definition of channel migration zone indicates that in defining the extent of a CMZ, local governments should take into account the river's characteristics and its surroundings. Unless otherwise demonstrated through scientific and technical information, the following characteristics should be considered when establishing the extent of the CMZ for management purposes:

     • Within incorporated municipalities and urban growth areas, areas separated from the active river channel by legally existing artificial channel constraints that limit channel movement should not be considered within the channel migration zone.

     • All areas separated from the active channel by a legally existing artificial structure(s) that is likely to restrain channel migration, including transportation facilities, built above or constructed to remain intact through the one hundred-year flood, should not be considered to be in the channel migration zone.

     • In areas outside incorporated municipalities and urban growth areas, channel constraints and flood control structures built below the one hundred-year flood elevation do not necessarily restrict channel migration and should not be considered to limit the channel migration zone unless demonstrated otherwise using scientific and technical information.

     Master programs shall implement the following principles:

     (i) Where feasible, give preference to nonstructural flood hazard reduction measures over structural measures.

     (ii) Base shoreline master program flood hazard reduction provisions on applicable watershed management plans, comprehensive flood hazard management plans, and other comprehensive planning efforts, provided those measures are consistent with the Shoreline Management Act and this chapter.

     (iii) Consider integrating master program flood hazard reduction provisions with other regulations and programs, including (if applicable):

     • Storm water management plans;

     • Flood plain regulations, as provided for in chapter 86.16 RCW;

     • Critical area ordinances and comprehensive plans, as provided in chapter 36.70A RCW; and

     • The National Flood Insurance Program.

     (iv) Assure that flood hazard protection measures do not result in a net loss of ecological functions associated with the rivers and streams.

     (v) Plan for and facilitate returning river and stream corridors to more natural hydrological conditions. Recognize that seasonal flooding is an essential natural process.

     (vi) When evaluating alternate flood control measures, consider the removal or relocation of structures in flood-prone areas.

     (vii) Local governments are encouraged to plan for and facilitate removal of artificial restrictions to natural channel migration, restoration of off channel hydrological connections and return river processes to a more natural state where feasible and appropriate.

     (c) Standards. Master programs shall implement the following standards within shoreline jurisdiction:

     (i) Development in flood plains should not significantly or cumulatively increase flood hazard or be inconsistent with a comprehensive flood hazard management plan adopted pursuant to chapter 86.12 RCW, provided the plan has been adopted after 1994 and approved by the department. New development or new uses in shoreline jurisdiction, including the subdivision of land, should not be established when it would be reasonably foreseeable that the development or use would require structural flood hazard reduction measures within the channel migration zone or floodway. The following uses and activities may be appropriate and/or necessary within the channel migration zone or floodway:

     • Actions that protect or restore the ecosystem-wide processes or ecological functions.

     • Forest practices in compliance with the Washington State Forest Practices Act and its implementing rules.

     • Existing and ongoing agricultural practices, provided that no new restrictions to channel movement occur.

     • Mining when conducted in a manner consistent with the environment designation and with the provisions of WAC 173-26-241 (3)(h).

     • Bridges, utility lines, and other public utility and transportation structures where no other feasible alternative exists or the alternative would result in unreasonable and disproportionate cost. Where such structures are allowed, mitigation shall address impacted functions and processes in the affected section of watershed or drift cell.

     • Repair and maintenance of an existing legal use, provided that such actions do not cause significant ecological impacts or increase flood hazards to other uses.

     • Development with a primary purpose of protecting or restoring ecological functions and ecosystem-wide processes.

     • Modifications or additions to an existing nonagricultural legal use, provided that channel migration is not further limited and that the new development includes appropriate protection of ecological functions.

     • Development in incorporated municipalities and designated urban growth areas, as defined in chapter 36.70A RCW, where existing structures prevent active channel movement and flooding.

     • Measures to reduce shoreline erosion, provided that it is demonstrated that the erosion rate exceeds that which would normally occur in a natural condition, that the measure does not interfere with fluvial hydrological and geomorphological processes normally acting in natural conditions, and that the measure includes appropriate mitigation of impacts to ecological functions associated with the river or stream.

     (ii) Allow new structural flood hazard reduction measures in shoreline jurisdiction only when it can be demonstrated by a scientific and engineering analysis that they are necessary to protect existing development, that nonstructural measures are not feasible, that impacts on ecological functions and priority species and habitats can be successfully mitigated so as to assure no net loss, and that appropriate vegetation conservation actions are undertaken consistent with WAC 173-26-221(5).

     Structural flood hazard reduction measures shall be consistent with an adopted comprehensive flood hazard management plan approved by the department that evaluates cumulative impacts to the watershed system.

     (iii) Place new structural flood hazard reduction measures landward of the associated wetlands, and designated vegetation conservation areas, except for actions that increase ecological functions, such as wetland restoration, or as noted below. Provided that such flood hazard reduction projects be authorized if it is determined that no other alternative to reduce flood hazard to existing development is feasible. The need for, and analysis of feasible alternatives to, structural improvements shall be documented through a geotechnical analysis.

     (iv) Require that new structural public flood hazard reduction measures, such as dikes and levees, dedicate and improve public access pathways unless public access improvements would cause unavoidable health or safety hazards to the public, inherent and unavoidable security problems, unacceptable and unmitigable significant ecological impacts, unavoidable conflict with the proposed use, or a cost that is disproportionate and unreasonable to the total long-term cost of the development.

     (v) Require that the removal of gravel for flood management purposes be consistent with an adopted flood hazard reduction plan and with this chapter and allowed only after a biological and geomorphological study shows that extraction has a long-term benefit to flood hazard reduction, does not result in a net loss of ecological functions, and is part of a comprehensive flood management solution.

     (4) Public access.

     (a) Applicability. Public access includes the ability of the general public to reach, touch, and enjoy the water's edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations. Public access provisions below apply to all shorelines of the state unless stated otherwise.

     (b) Principles. Local master programs shall:

     (i) Promote and enhance the public interest with regard to rights to access waters held in public trust by the state while protecting private property rights and public safety.

     (ii) Protect the rights of navigation and space necessary for water-dependent uses.

     (iii) To the greatest extent feasible consistent with the overall best interest of the state and the people generally, protect the public's opportunity to enjoy the physical and aesthetic qualities of shorelines of the state, including views of the water.

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

     (c) Planning process to address public access. Local governments should plan for an integrated shoreline area public access system that identifies specific public needs and opportunities to provide public access. Such a system can often be more effective and economical than applying uniform public access requirements to all development. This planning should be integrated with other relevant comprehensive plan elements, especially transportation and recreation. The planning process shall also comply with all relevant constitutional and other legal limitations that protect private property rights.

     Where a port district or other public entity has incorporated public access planning into its master plan through an open public process, that plan may serve as a portion of the local government's public access planning, provided it meets the provisions of this chapter. The planning may also justify more flexible off-site or special area public access provisions in the master program. Public participation requirements in WAC 173-26-201 (3)(b)(i) apply to public access planning.

     At a minimum, the public access planning should result in public access requirements for shoreline permits, recommended projects, port master plans, and/or actions to be taken to develop public shoreline access to shorelines on public property. The planning should identify a variety of shoreline access opportunities and circulation for pedestrians (including disabled persons), bicycles, and vehicles between shoreline access points, consistent with other comprehensive plan elements.

     (d) Standards. Shoreline master programs should implement the following standards:

     (i) Based on the public access planning described in (c) of this subsection, establish policies and regulations that protect and enhance both physical and visual public access. The master program shall address public access on public lands. The master program should seek to increase the amount and diversity of public access to the state's shorelines consistent with the natural shoreline character, property rights, public rights under the Public Trust Doctrine, and public safety.

     (ii) Require that shoreline development by public entities, including local governments, port districts, state agencies, and public utility districts, include public access measures as part of each development project, unless such access is shown to be incompatible due to reasons of safety, security, or impact to the shoreline environment. Where public access planning as described in WAC 173-26-221 (4)(c) demonstrates that a more effective public access system can be achieved through alternate means, such as focusing public access at the most desirable locations, local governments may institute master program provisions for public access based on that approach in lieu of uniform site-by-site public access requirements.

     (iii) Provide standards for the dedication and improvement of public access in developments for water-enjoyment, water-related, and nonwater-dependent uses and for the subdivision of land into more than four parcels. In these cases, public access should be required except:

     (A) Where the local government provides more effective public access through a public access planning process described in WAC 173-26-221 (4)(c).

     (B) Where it is demonstrated to be infeasible due to reasons of incompatible uses, safety, security, or impact to the shoreline environment or due to constitutional or other legal limitations that may be applicable.

     In determining the infeasibility, undesirability, or incompatibility of public access in a given situation, local governments shall consider alternate methods of providing public access, such as off-site improvements, viewing platforms, separation of uses through site planning and design, and restricting hours of public access.

     (C) For individual single-family residences not part of a development planned for more than four parcels.

     (iv) Adopt provisions, such as maximum height limits, setbacks, and view corridors, to minimize the impacts to existing views from public property or substantial numbers of residences. Where there is an irreconcilable conflict between water-dependent shoreline uses or physical public access and maintenance of views from adjacent properties, the water-dependent uses and physical public access shall have priority, unless there is a compelling reason to the contrary.

     (v) Assure that public access improvements do not result in a net loss of shoreline ecological functions.

     (5) Shoreline vegetation conservation.

     (a) Applicability. Vegetation conservation includes activities to protect and restore vegetation along or near marine and freshwater shorelines that contribute to the ecological functions of shoreline areas. Vegetation conservation provisions include the prevention or restriction of plant clearing and earth grading, vegetation restoration, and the control of invasive weeds and nonnative species.

     Unless otherwise stated, vegetation conservation does not include those activities covered under the Washington State Forest Practices Act, except for conversion to other uses and those other forest practice activities over which local governments have authority. As with all master program provisions, vegetation conservation provisions apply even to those shoreline uses and developments that are exempt from the requirement to obtain a permit. Like other master program provisions, vegetation conservation standards do not apply retroactively to existing uses and structures, such as existing agricultural practices.

     (b) Principles. The intent of vegetation conservation is to protect and restore the ecological functions and ecosystem-wide processes performed by vegetation along shorelines. Vegetation conservation should also be undertaken to protect human safety and property, to increase the stability of river banks and coastal bluffs, to reduce the need for structural shoreline stabilization measures, to improve the visual and aesthetic qualities of the shoreline, to protect plant and animal species and their habitats, and to enhance shoreline uses.

     Master programs shall include: Planning provisions that address vegetation conservation and restoration, and regulatory provisions that address conservation of vegetation; as necessary to assure no net loss of shoreline ecological functions and ecosystem-wide processes, to avoid adverse impacts to soil hydrology, and to reduce the hazard of slope failures or accelerated erosion.

     Local governments should address ecological functions and ecosystem-wide processes provided by vegetation as described in WAC 173-26-201 (3)(d)(i).

     Local governments may implement these objectives through a variety of measures, where consistent with Shoreline Management Act policy, including clearing and grading regulations, setback and buffer standards, critical area regulations, conditional use requirements for specific uses or areas, mitigation requirements, incentives and nonregulatory programs.

     In establishing vegetation conservation regulations, local governments must use available scientific and technical information, as described in WAC 173-26-201 (2)(a). At a minimum, local governments should consult shoreline management assistance materials provided by the department and Management Recommendations for Washington's Priority Habitats, prepared by the Washington state department of fish and wildlife where applicable.

     Current scientific evidence indicates that the length, width, and species composition of a shoreline vegetation community contribute substantively to the aquatic ecological functions. Likewise, the biota within the aquatic environment is essential to ecological functions of the adjacent upland vegetation. The ability of vegetated areas to provide critical ecological functions diminishes as the length and width of the vegetated area along shorelines is reduced. When shoreline vegetation is removed, the narrower the area of remaining vegetation, the greater the risk that the functions will not be performed.

     In the Pacific Northwest, aquatic environments, as well as their associated upland vegetation and wetlands, provide significant habitat for a myriad of fish and wildlife species. Healthy environments for aquatic species are inseparably linked with the ecological integrity of the surrounding terrestrial ecosystem. For example, a nearly continuous corridor of mature forest characterizes the natural riparian conditions of the Pacific Northwest. Riparian corridors along marine shorelines provide many of the same functions as their freshwater counterparts. The most commonly recognized functions of the shoreline vegetation include, but are not limited to:

     • Providing shade necessary to maintain the cool temperatures required by salmonids, spawning forage fish, and other aquatic biota.

     • Providing organic inputs critical for aquatic life.

     • Providing food in the form of various insects and other benthic macroinvertebrates.

     • Stabilizing banks, minimizing erosion, and reducing the occurrence of landslides. The roots of trees and other riparian vegetation provide the bulk of this function.

     • Reducing fine sediment input into the aquatic environment through storm water retention and vegetative filtering.

     • Filtering and vegetative uptake of nutrients and pollutants from ground water and surface runoff.

     • Providing a source of large woody debris into the aquatic system. Large woody debris is the primary structural element that functions as a hydraulic roughness element to moderate flows. Large woody debris also serves a pool-forming function, providing critical salmonid rearing and refuge habitat. Abundant large woody debris increases aquatic diversity and stabilization.

     • Regulation of microclimate in the stream-riparian and intertidal corridors.

     • Providing critical wildlife habitat, including migration corridors and feeding, watering, rearing, and refugia areas.

     Sustaining different individual functions requires different widths, compositions and densities of vegetation. The importance of the different functions, in turn, varies with the type of shoreline setting. For example, in forested shoreline settings, periodic recruitment of fallen trees, especially conifers, into the stream channel is an important attribute, critical to natural stream channel maintenance. Therefore, vegetated areas along streams which once supported or could in the future support mature trees should be wide enough to accomplish this periodic recruitment process.

     Woody vegetation normally classed as trees may not be a natural component of plant communities in some environments, such as in arid climates and on coastal dunes. In these instances, the width of a vegetated area necessary to achieve the full suite of vegetation-related shoreline functions may not be related to vegetation height.

     Local governments should identify which ecological processes and functions are important to the local aquatic and terrestrial ecology and conserve sufficient vegetation to maintain them. Such vegetation conservation areas are not necessarily intended to be closed to use and development but should provide for management of vegetation in a manner adequate to assure no net loss of shoreline ecological functions.

     (c) Standards. Master programs shall implement the following requirements in shoreline jurisdiction.

     Establish vegetation conservation standards that implement the principles in WAC 173-26-221 (5)(b). Methods to do this may include setback or buffer requirements, clearing and grading standards, regulatory incentives, environment designation standards, or other master program provisions. Selective pruning of trees for safety and view protection may be allowed and the removal of noxious weeds should be authorized.

     Additional vegetation conservation standards for specific uses are included in WAC 173-26-241(3).

     (6) Water quality, storm water, and nonpoint pollution.

     (a) Applicability. The following section applies to all development and uses in shorelines of the state, as defined in WAC 173-26-020, that affect water quality.

     (b) Principles. Shoreline master programs shall, as stated in RCW 90.58.020, protect against adverse impacts to the public health, to the land and its vegetation and wildlife, and to the waters of the state and their aquatic life, through implementation of the following principles:

     (i) Prevent impacts to water quality and storm water quantity that would result in a net loss of shoreline ecological functions, or a significant impact to aesthetic qualities, or recreational opportunities.

     (ii) Ensure mutual consistency between shoreline management provisions and other regulations that address water quality and storm water quantity, including public health, storm water, and water discharge standards. The regulations that are most protective of ecological functions shall apply.

     (c) Standards. Shoreline master programs shall include provisions to implement the principles of this section.

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NEW SECTION
WAC 173-26-231   Shoreline modifications.   (1) Applicability. Local governments are encouraged to prepare master program provisions that distinguish between shoreline modifications and shoreline uses. Shoreline modifications are generally related to construction of a physical element such as a dike, breakwater, dredged basin, or fill, but they can include other actions such as clearing, grading, application of chemicals, or significant vegetation removal. Shoreline modifications usually are undertaken in support of or in preparation for a shoreline use; for example, fill (shoreline modification) required for a cargo terminal (industrial use) or dredging (shoreline modification) to allow for a marina (boating facility use).

     The provisions in this section apply to all shoreline modifications within shoreline jurisdiction.

     (2) General principles applicable to all shoreline modifications. Master programs shall implement the following principles:

     (a) Allow structural shoreline modifications only where they are demonstrated to be necessary to support or protect an allowed principal structure or a legally existing shoreline use that is in danger of loss or substantial damage or are necessary for reconfiguration of the shoreline for mitigation or enhancement purposes.

     (b) Reduce the adverse effects of shoreline modifications and, as much as possible, limit shoreline modifications in number and extent.

     (c) Allow only shoreline modifications that are appropriate to the specific type of shoreline and environmental conditions for which they are proposed.

     (d) Assure that shoreline modifications individually and cumulatively do not result in a net loss of ecological functions. This is to be achieved by giving preference to those types of shoreline modifications that have a lesser impact on ecological functions and requiring mitigation of identified impacts resulting from shoreline modifications.

     (e) Where applicable, base provisions on scientific and technical information and a comprehensive analysis of drift cells for marine waters or reach conditions for river and stream systems. Contact the department for available drift cell characterizations.

     (f) Plan for the enhancement of impaired ecological functions where feasible and appropriate while accommodating permitted uses. As shoreline modifications occur, incorporate all feasible measures to protect ecological shoreline functions and ecosystem-wide processes.

     (g) Avoid and reduce significant ecological impacts according to the mitigation sequence in WAC 173-26-201 (2)(e).

     (3) Provisions for specific shoreline modifications.

     (a) Shoreline stabilization.

     (i) Applicability. Shoreline stabilization includes actions taken to address erosion impacts to property and dwellings, businesses, or structures caused by natural processes, such as current, flood, tides, wind, or wave action. These actions include structural and nonstructural methods.

     Nonstructural methods include building setbacks, relocation of the structure to be protected, ground water management, planning and regulatory measures to avoid the need for structural stabilization.

     (ii) Principles. Shorelines are by nature unstable, although in varying degrees. Erosion and accretion are natural processes that provide ecological functions and thereby contribute to sustaining the natural resource and ecology of the shoreline. Human use of the shoreline has typically led to hardening of the shoreline for various reasons including reduction of erosion or providing useful space at the shore or providing access to docks and piers. The impacts of hardening any one property may be minimal but cumulatively the impact of this shoreline modification is significant.

     Shoreline hardening typically results in adverse impacts to shoreline ecological functions such as:

     • Beach starvation. Sediment supply to nearby beaches is cut off, leading to "starvation" of the beaches for the gravel, sand, and other fine-grained materials that typically constitute a beach.

     • Habitat degradation. Vegetation that shades the upper beach or bank is eliminated, thus degrading the value of the shoreline for many ecological functions, including spawning habitat for salmonids and forage fish.

     • Sediment impoundment. As a result of shoreline hardening, the sources of sediment on beaches (eroding "feeder" bluffs) are progressively lost and longshore transport is diminished. This leads to lowering of down-drift beaches, the narrowing of the high tide beach, and the coarsening of beach sediment. As beaches become more coarse, less prey for juvenile fish is produced. Sediment starvation may lead to accelerated erosion in down-drift areas.

     • Exacerbation of erosion. The hard face of shoreline armoring, particularly concrete bulkheads, reflects wave energy back onto the beach, exacerbating erosion.

     • Ground water impacts. Erosion control structures often raise the water table on the landward side, which leads to higher pore pressures in the beach itself. In some cases, this may lead to accelerated erosion of sand-sized material from the beach.

     • Hydraulic impacts. Shoreline armoring generally increases the reflectivity of the shoreline and redirects wave energy back onto the beach. This leads to scouring and lowering of the beach, to coarsening of the beach, and to ultimate failure of the structure.

     • Loss of shoreline vegetation. Vegetation provides important "softer" erosion control functions. Vegetation is also critical in maintaining ecological functions.

     • Loss of large woody debris. Changed hydraulic regimes and the loss of the high tide beach, along with the prevention of natural erosion of vegetated shorelines, lead to the loss of beached organic material. This material can increase biological diversity, can serve as a stabilizing influence on natural shorelines, and is habitat for many aquatic-based organisms, which are, in turn, important prey for larger organisms.

     • Restriction of channel movement and creation of side channels. Hardened shorelines along rivers slow the movement of channels, which, in turn, prevents the input of larger woody debris, gravels for spawning, and the creation of side channels important for juvenile salmon rearing, and can result in increased floods and scour.

     Additionally, hard structures, especially vertical walls, often create conditions that lead to failure of the structure. In time, the substrate of the beach coarsens and scours down to bedrock or a hard clay. The footings of bulkheads are exposed, leading to undermining and failure. This process is exacerbated when the original cause of the erosion and "need" for the bulkhead was from upland water drainage problems. Failed bulkheads and walls adversely impact beach aesthetics, may be a safety or navigational hazard, and may adversely impact shoreline ecological functions.

     "Hard" structural stabilization measures refer to those with solid, hard surfaces, such as concrete bulkheads, while "soft" structural measures rely on less rigid materials, such as biotechnical vegetation measures or beach enhancement. There is a range of measures varying from soft to hard that include:

     • Vegetation enhancement;

     • Upland drainage control;

     • Biotechnical measures;

     • Beach enhancement;

     • Anchor trees;

     • Gravel placement;

     • Rock revetments;

     • Gabions;

     • Concrete groins;

     • Retaining walls and bluff walls;

     • Bulkheads; and

     • Seawalls.

     Generally, the harder the construction measure, the greater the impact on shoreline processes, including sediment transport, geomorphology, and biological functions.

     Structural shoreline stabilization often results in vegetation removal and damage to near-shore habitat and shoreline corridors. Therefore, master program shoreline stabilization provisions shall also be consistent with WAC 173-26-221(5), vegetation conservation, and where applicable, WAC 173-26-221(2), critical areas.

     In order to implement RCW 90.58.100(6) and avoid or mitigate adverse impacts to shoreline ecological functions where shoreline alterations are necessary to protect single-family residences and principal appurtenant structures in danger from active shoreline erosion, master programs should include standards setting forth the circumstances under which alteration of the shoreline is permitted, and for the design and type of protective measures and devices.

     (iii) Standards. In order to avoid the individual and cumulative net loss of ecological functions attributable to shoreline stabilization, master programs shall implement the above principles and apply the following standards:

     (A) New development should be located and designed to avoid the need for future shoreline stabilization to the extent feasible. Subdivision of land must be regulated to assure that the lots created will not require shoreline stabilization in order for reasonable development to occur using geotechnical analysis of the site and shoreline characteristics. New development on steep slopes or bluffs shall be set back sufficiently to ensure that shoreline stabilization is unlikely to be necessary during the life of the structure, as demonstrated by a geotechnical analysis. New development that would require shoreline stabilization which causes significant impacts to adjacent or down-current properties and shoreline areas should not be allowed.

     (B) New structural stabilization measures shall not be allowed except when necessity is demonstrated in the following manner:

     (I) To protect existing principal structures:

     • New or enlarged structural shoreline stabilization measures for an existing principal structure, including residences, should not be allowed unless there is conclusive evidence, documented by a geotechnical analysis, that the structure is in danger from shoreline erosion caused by tidal action, currents, or waves. Normal sloughing, erosion of steep bluffs, or shoreline erosion itself, without a scientific or geotechnical analysis, is not demonstration of need. The geotechnical analysis should evaluate on-site drainage issues and address drainage problems away from the shoreline edge before considering structural shoreline stabilization.

     • The erosion control structure will not result in a net loss of shoreline ecological functions.

     (II) In support of new nonwater-dependent development, including single-family residences, when all of the conditions below apply:

     • The erosion is not being caused by upland conditions, such as the loss of vegetation and drainage.

     • Nonstructural measures, such as placing the development further from the shoreline, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

     • The need to protect primary structures from damage due to erosion is demonstrated through a geotechnical report. The damage must be caused by natural processes, such as tidal action, currents, and waves.

     • The erosion control structure will not result in a net loss of shoreline ecological functions.

     (III) In support of water-dependent development when all of the conditions below apply:

     • The erosion is not being caused by upland conditions, such as the loss of vegetation and drainage.

     • Nonstructural measures, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

     • The need to protect primary structures from damage due to erosion is demonstrated through a geotechnical report.

     • The erosion control structure will not result in a net loss of shoreline ecological functions.

     (IV) To protect projects for the restoration of ecological functions or hazardous substance remediation projects pursuant to chapter 70.105D RCW when all of the conditions below apply:

     • Nonstructural measures, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

     • The erosion control structure will not result in a net loss of shoreline ecological functions.

     (C) An existing shoreline stabilization structure may be replaced with a similar structure if there is a demonstrated need to protect principal uses or structures from erosion caused by currents, tidal action, or waves.

     • The replacement structure should be designed, located, sized, and constructed to assure no net loss of ecological functions.

     • Replacement walls or bulkheads shall not encroach waterward of the ordinary high-water mark or existing structure unless the residence was occupied prior to January 1, 1992, and there are overriding safety or environmental concerns. In such cases, the replacement structure shall abut the existing shoreline stabilization structure.

     • Where a net loss of ecological functions associated with critical saltwater habitats would occur by leaving the existing structure, remove it as part of the replacement measure.

     • Soft shoreline stabilization measures that provide restoration of shoreline ecological functions may be permitted waterward of the ordinary high-water mark.

     • For purposes of this section standards on shoreline stabilization measures, "replacement" means the construction of a new structure to perform a shoreline stabilization function of an existing structure which can no longer adequately serve its purpose. Additions to or increases in size of existing shoreline stabilization measures shall be considered new structures.

     (D) Geotechnical reports pursuant to this section that address the need to prevent potential damage to a primary structure shall address the necessity for shoreline stabilization by estimating time frames and rates of erosion and report on the urgency associated with the specific situation. As a general matter, hard armoring solutions should not be authorized except when a report confirms that there is a significant possibility that such a structure will be damaged within three years as a result of shoreline erosion in the absence of such hard armoring measures, or where waiting until the need is that immediate, would foreclose the opportunity to use measures that avoid impacts on ecological functions. Thus, where the geotechnical report confirms a need to prevent potential damage to a primary structure, but the need is not as immediate as the three years, that report may still be used to justify more immediate authorization to protect against erosion using soft measures.

     (E) When any structural shoreline stabilization measures are demonstrated to be necessary, pursuant to above provisions.

     • Limit the size of stabilization measures to the minimum necessary. Use measures designed to assure no net loss of shoreline ecological functions. Soft approaches shall be used unless demonstrated not to be sufficient to protect primary structures, dwellings, and businesses.

     • Ensure that publicly financed or subsidized shoreline erosion control measures do not restrict appropriate public access to the shoreline except where such access is determined to be infeasible because of incompatible uses, safety, security, or harm to ecological functions. See public access provisions; WAC 173-26-221(4). Where feasible, incorporate ecological restoration and public access improvements into the project.

     • Mitigate new erosion control measures, including replacement structures, on feeder bluffs or other actions that affect beach sediment-producing areas to avoid and, if that is not possible, to minimize adverse impacts to sediment conveyance systems. Where sediment conveyance systems cross jurisdictional boundaries, local governments should coordinate shoreline management efforts. If beach erosion is threatening existing development, local governments should adopt master program provisions for a beach management district or other institutional mechanism to provide comprehensive mitigation for the adverse impacts of erosion control measures.

     (F) For erosion or mass wasting due to upland conditions, see WAC 173-26-221 (2)(c)(ii).

     (b) Piers and docks. New piers and docks shall be allowed only for water-dependent uses or public access. As used here, a dock associated with a single-family residence is a water-dependent use provided that it is designed and intended as a facility for access to watercraft and otherwise complies with the provisions of this section. Pier and dock construction shall be restricted to the minimum size necessary to meet the needs of the proposed water-dependent use. Water-related and water-enjoyment uses may be allowed as part of mixed-use development on over-water structures where they are clearly auxiliary to and in support of water-dependent uses, provided the minimum size requirement needed to meet the water-dependent use is not violated.

     New pier or dock construction, excluding docks accessory to single-family residences, should be permitted only when the applicant has demonstrated that a specific need exists to support the intended water-dependent uses. If a port district or other public or commercial entity involving water-dependent uses has performed a needs analysis or comprehensive master plan projecting the future needs for pier or dock space, and if the plan or analysis is approved by the local government and consistent with these guidelines, it may serve as the necessary justification for pier design, size, and construction. The intent of this provision is to allow ports and other entities the flexibility necessary to provide for existing and future water-dependent uses.

     Where new piers or docks are allowed, master programs should contain provisions to require new residential development of two or more dwellings to provide joint use or community dock facilities, when feasible, rather than allow individual docks for each residence.

     Piers and docks, including those accessory to single-family residences, shall be designed and constructed to avoid or, if that is not possible, to minimize and mitigate the impacts to ecological functions, critical areas resources such as eelgrass beds and fish habitats and processes such as currents and littoral drift. See WAC 173-26-221 (2)(c)(iii) and (iv). Master programs should require that structures be made of materials that have been approved by applicable state agencies.

     (c) Fill. Fills shall be located, designed, and constructed to protect shoreline ecological functions and ecosystem-wide processes, including channel migration.

     Fills waterward of the ordinary high-water mark shall be allowed only when necessary to support a water-dependent use, public access, cleanup and disposal of contaminated sediments as part of an interagency environmental clean-up plan, disposal of dredged material considered suitable under, and conducted in accordance with, the Puget Sound Dredge Disposal Agreement, mitigation action, environmental restoration, beach nourishment or enhancement project. Fills waterward of the ordinary high-water mark for any use except ecological restoration should require a conditional use permit.

     (d) Breakwaters, jetties, groins, and weirs. Breakwaters, jetties, groins, and weirs located waterward of the ordinary high-water mark shall be allowed only where necessary to support water-dependent uses, public access, shoreline stabilization, or other specific public purpose. Breakwaters, jetties, groins, weirs, and similar structures should require a conditional use permit, except for those structures installed to protect or restore ecological functions, such as woody debris installed in streams. Breakwaters, jetties, groins, and weirs shall be designed to protect critical areas and shall provide for mitigation according to the sequence defined in WAC 173-26-201 (2)(e).

     (e) Beach and dunes management. Washington's beaches and their associated dunes lie along the Pacific Ocean coast between Point Grenville and Cape Disappointment, and as shorelines of statewide significance are mandated to be managed from a statewide perspective by the act. Beaches and dunes within shoreline jurisdiction shall be managed to conserve, protect, where appropriate develop, and where appropriate restore the resources and benefits of coastal beaches. Beaches and dunes should also be managed to reduce the hazard to human life and property from natural or human-induced actions associated with these areas.

     Shoreline master programs in coastal marine areas shall provide for diverse and appropriate use of beach and dune areas consistent with their ecological, recreational, aesthetic, and economic values, and consistent with the natural limitations of beaches, dunes, and dune vegetation for development. Coastal master programs shall institute development setbacks from the shoreline to prevent impacts to the natural, functional, ecological, and aesthetic qualities of the dune.

     "Dune modification" is the removal or addition of material to a dune, the reforming or reconfiguration of a dune, or the removal or addition of vegetation that will alter the dune's shape or sediment migration. Dune modification may be proposed for a number of purposes, including protection of property, flood and storm hazard reduction, erosion prevention, and ecological restoration.

     Coastal dune modification shall be allowed only consistent with state and federal flood protection standards and when it will not result in a net loss of shoreline ecological functions or significant adverse impacts to other shoreline resources and values.

     Dune modification to protect views of the water shall be allowed only on properties subdivided and developed prior to the adoption of the master program and where the view is completely obstructed for residences or water-enjoyment uses and where it can be demonstrated that the dunes did not obstruct views at the time of original occupancy, and then only in conformance with the above provisions.

     (f) Dredging and dredge material disposal. Dredging and dredge material disposal shall be done in a manner which avoids or minimizes significant ecological impacts and impacts which cannot be avoided should be mitigated in a manner that assures no net loss of shoreline ecological functions.

     New development should be sited and designed to avoid or, if that is not possible, to minimize the need for new and maintenance dredging. Dredging for the purpose of establishing, expanding, or relocating navigation channels and basins should be allowed only when significant ecological impacts are minimized and when mitigation is provided. Maintenance dredging of established navigation channels and basins should be restricted to maintaining previously dredged and/or existing authorized location, depth, and width unless necessary to improve navigation.

     Dredging waterward of the ordinary high-water mark for the primary purpose of obtaining fill material shall not be allowed, except when the material is necessary for the restoration of ecological functions. When allowed, the site where the fill is to be placed must be located waterward of the ordinary high-water mark. The project must be either associated with a MTCA or CERCLA habitat restoration project or, if approved through a shoreline conditional use permit, any other significant habitat enhancement project. Master programs should include provisions for uses of suitable dredge material that benefit shoreline resources. Where applicable, master programs should provide for the implementation of adopted regional interagency dredge material management plans or watershed management planning.

     Disposal of dredge material into river channel migration zones within shoreline jurisdiction but outside harbor areas shall be discouraged. In the limited instances where it is allowed, such disposal shall require a conditional use permit.

     (g) Shoreline habitat and natural systems enhancement projects. Shoreline habitat and natural systems enhancement projects include those activities proposed and conducted specifically for the purpose of establishing, restoring, or enhancing habitat for priority species in shorelines.

     Master programs should include provisions fostering habitat and natural system enhancement projects. Such projects may include shoreline modification actions such as modification of vegetation, shoreline stabilization, dredging, and filling, provided that the primary purpose of such actions is clearly restoration of the natural character and ecological functions of the shoreline. Master program provisions should assure that the projects address legitimate restoration needs and priorities and facilitate implementation of the restoration plan developed pursuant to WAC 173-26-201 (2)(f).

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NEW SECTION
WAC 173-26-241   Shoreline uses.   (1) Applicability. The provisions in this section apply to specific common uses and types of development to the extent they occur within shoreline jurisdiction. Master programs should include these, where applicable, and should include specific use provisions for other common uses and types of development in the jurisdiction. All uses and development must be consistent with the provisions of the environment designation in which they are located and the general regulations of the master program.

     (2) General use provisions.

     (a) Principles. Shoreline master programs shall implement the following principles:

     (i) Establish a system of use regulations and environment designation provisions consistent with WAC 173-26-201 (2)(d) and 173-26-211 that gives preference to those uses that are consistent with the control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon uses of the state's shoreline areas.

     (ii) Ensure that all shoreline master program provisions concerning proposed development of property are established, as necessary, to protect the public's health, safety, and welfare, as well as the land and its vegetation and wildlife, and to protect property rights while implementing the policies of the Shoreline Management Act.

     (iii) Reduce use conflicts by including provisions to prohibit or apply special conditions to those uses which are not consistent with the control of pollution and prevention of damage to the natural environment or are not unique to or dependent upon use of the state's shoreline. In implementing this provision, preference shall be given first to water-dependent uses, then to water-related uses and water-enjoyment uses.

     (iv) Establish use regulations designed to assure no net loss of ecological functions associated with the shoreline.

     (b) Conditional uses.

     (i) Master programs shall define the types of uses and development that require shoreline conditional use permits pursuant to RCW 90.58.100(5). Requirements for a conditional use permit may be used for a variety of purposes, including:

     • To effectively address unanticipated uses that are not classified in the master program as described in WAC 173-27-030.

     • To address cumulative impacts.

     • To provide the opportunity to require specially tailored environmental analysis or design criteria for types of use or development that may otherwise be inconsistent with a specific environment designation within a master program or with the Shoreline Management Act policies.

     In these cases, allowing a given use as a conditional use could provide greater flexibility within the master program than if the use were prohibited outright.

     (ii) If master programs permit the following types of uses and development, they should require a conditional use permit:

     (A) Uses and development that may significantly impair or alter the public's use of the water areas of the state.

     (B) Uses and development which, by their intrinsic nature, may have a significant ecological impact on shoreline ecological functions or shoreline resources depending on location, design, and site conditions.

     (C) Development in critical saltwater habitats.

     (iii) The provisions of this section are minimum requirements and are not intended to limit local government's ability to identify other uses and developments within the master program as conditional uses where necessary or appropriate.

     (3) Standards. Master programs shall establish a comprehensive program of use regulations for shorelines and shall incorporate provisions for specific uses consistent with the following as necessary to assure consistency with the policy of the act and where relevant within the jurisdiction.

     (a) Agriculture.

     (i) For the purposes of this section, the terms agricultural activities, agricultural products, agricultural equipment and facilities and agricultural land shall have the specific meanings as provided in WAC 173-26-020.

     (ii) Master programs shall not require modification of or limit agricultural activities occurring on agricultural lands. In jurisdictions where agricultural activities occur, master programs shall include provisions addressing new agricultural activities on land not meeting the definition of agricultural land, conversion of agricultural lands to other uses, and other development on agricultural land that does not meet the definition of agricultural activities.

     (iii) Nothing in this section limits or changes the terms of the current exception to the definition of substantial development. A substantial development permit is required for any agricultural development not specifically exempted by the provisions of RCW 90.58.030 (3)(e)(iv).

     (iv) Master programs shall use definitions consistent with the definitions found in WAC 173-26-020(3).

     (v) New agricultural activities are activities that meet the definition of agricultural activities but are proposed on land not currently in agricultural use. Master programs shall include provisions for new agricultural activities to assure that:

     (A) Specific uses and developments in support of agricultural use are consistent with the environment designation in which the land is located.

     (B) Agricultural uses and development in support of agricultural uses, are located and designed to assure no net loss of ecological functions and to not have a significant adverse impact on other shoreline resources and values.

     Measures appropriate to meet these requirements include provisions addressing water quality protection, and vegetation conservation, as described in WAC 173-26-220 (5) and (6). Requirements for buffers for agricultural development shall be based on scientific and technical information and management practices adopted by the applicable state agencies necessary to preserve the ecological functions and qualities of the shoreline environment.

     (vi) Master programs shall include provisions to assure that development on agricultural land that does not meet the definition of agricultural activities, and the conversion of agricultural land to nonagricultural uses, shall be consistent with the environment designation, and the general and specific use regulations applicable to the proposed use and do not result in a net loss of ecological functions associated with the shoreline.

     (b) Aquaculture. Aquaculture is the culture or farming of food fish, shellfish, or other aquatic plants and animals. This activity is of statewide interest. Properly managed, it can result in long-term over short-term benefit and can protect the resources and ecology of the shoreline. Aquaculture is dependent on the use of the water area and, when consistent with control of pollution and prevention of damage to the environment, is a preferred use of the water area. Local government should consider local ecological conditions and provide limits and conditions to assure appropriate compatible types of aquaculture for the local conditions as necessary to assure no net loss of ecological functions.

     Potential locations for aquaculture are relatively restricted due to specific requirements for water quality, temperature, flows, oxygen content, adjacent land uses, wind protection, commercial navigation, and, in marine waters, salinity. The technology associated with some forms of present-day aquaculture is still in its formative stages and experimental. Local shoreline master programs should therefore recognize the necessity for some latitude in the development of this use as well as its potential impact on existing uses and natural systems.

     Aquaculture should not be permitted in areas where it would result in a net loss of ecological functions, adversely impact eelgrass and macroalgae, or significantly conflict with navigation and other water-dependent uses. Aquacultural facilities should be designed and located so as not to spread disease to native aquatic life, establish new nonnative species which cause significant ecological impacts, or significantly impact the aesthetic qualities of the shoreline. Impacts to ecological functions shall be mitigated according to the mitigation sequence described in WAC 173-26-020.

     (c) Boating facilities. For the purposes of this chapter, "boating facilities" excludes docks serving four or fewer single-family residences. Shoreline master programs shall contain provisions to assure no net loss of ecological functions as a result of development of boating facilities while providing the boating public recreational opportunities on waters of the state.

     Where applicable, shoreline master programs should, at a minimum, contain:

     (i) Provisions to ensure that boating facilities are located only at sites with suitable environmental conditions, shoreline configuration, access, and neighboring uses.

     (ii) Provisions that assure that facilities meet health, safety, and welfare requirements. Master programs may reference other regulations to accomplish this requirement.

     (iii) Regulations to avoid, or if that is not possible, to mitigate aesthetic impacts.

     (iv) Provisions for public access in new marinas, particularly where water-enjoyment uses are associated with the marina, in accordance with WAC 173-26-221(4).

     (v) Regulations to limit the impacts to shoreline resources from boaters living in their vessels (live-aboard).

     (vi) Regulations that assure that the development of boating facilities, and associated and accessory uses, will not result in a net loss of shoreline ecological functions or other significant adverse impacts.

     (vii) Regulations to protect the rights of navigation.

     (viii) Regulations restricting vessels from extended mooring on waters of the state except as allowed by applicable state regulations and unless a lease or permission is obtained from the state and impacts to navigation and public access are mitigated.

     (d) Commercial development. Master programs shall first give preference to water-dependent commercial uses over nonwater-dependent commercial uses; and second, give preference to water-related and water-enjoyment commercial uses over nonwater-oriented commercial uses.

     The design, layout and operation of certain commercial uses directly affects their classification with regard to whether or not they qualify as water-related or water-enjoyment uses. Master programs shall assure that commercial uses that may be authorized as water-related or water-enjoyment uses are required to incorporate appropriate design and operational elements so that they meet the definition of water-related or water-enjoyment uses.

     Master programs should require that public access and ecological restoration be considered as potential mitigation of impacts to shoreline resources and values for all water-related or water-dependent commercial development unless such improvements are demonstrated to be infeasible or inappropriate. Where commercial use is proposed for location on land in public ownership, public access should be required. Refer to WAC 173-26-221(4) for public access provisions.

     Master programs should prohibit nonwater-oriented commercial uses on the shoreline unless they meet the following criteria:

     (i) The use is part of a mixed-use project that includes water-dependent uses and provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration; or

     (ii) Navigability is severely limited at the proposed site; and the commercial use provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration.

     In areas designated for commercial use, nonwater-oriented commercial development may be allowed if the site is physically separated from the shoreline by another property or public right of way.

     Nonwater-dependent commercial uses should not be allowed over water except in existing structures or in the limited instances where they are auxiliary to and necessary in support of water-dependent uses.

     Master programs shall assure that commercial development will not result in a net loss of shoreline ecological functions or have significant adverse impact to other shoreline uses, resources and values provided for in RCW 90.58.020 such as navigation, recreation and public access.

     (e) Forest practices. Local master programs should rely on the Forest Practices Act and rules implementing the act and the Forest and Fish Report as adequate management of commercial forest uses within shoreline jurisdiction. However, local governments shall, where applicable, apply this chapter to Class IV-General forest practices where shorelines are being converted or are expected to be converted to nonforest uses.

     Forest practice conversions and other Class IV-General forest practices where there is a likelihood of conversion to nonforest uses, shall assure no net loss of shoreline ecological functions and shall maintain the ecological quality of the watershed's hydrologic system. Master programs shall establish provisions to ensure that all such practices are conducted in a manner consistent with the master program environment designation provisions and the provisions of this chapter. Applicable shoreline master programs should contain provisions to ensure that when forest lands are converted to another use, there will be no net loss of shoreline ecological functions or significant adverse impacts to other shoreline uses, resources and values provided for in RCW 90.58.020 such as navigation, recreation and public access.

     Master programs shall implement the provisions of RCW 90.58.150 regarding selective removal of timber harvest on shorelines of statewide significance. Exceptions to this standard shall be by conditional use permit only.

     Lands designated as "forest lands" pursuant to RCW 36.70A.170 shall be designated consistent with either the "natural," "rural conservancy," environment designation.

     Where forest practices fall within the applicability of the Forest Practices Act, local governments should consult with the department of natural resources, other applicable agencies, and local timber owners and operators.

     (f) Industry. Master programs shall first give preference to water-dependent industrial uses over nonwater-dependent industrial uses; and second, give preference to water-related industrial uses over nonwater-oriented industrial uses.

     Regional and statewide needs for water-dependent and water-related industrial facilities should be carefully considered in establishing master program environment designations, use provisions, and space allocations for industrial uses and supporting facilities. Lands designated for industrial development should not include shoreline areas with severe environmental limitations, such as critical areas.

     Where industrial development is allowed, master programs shall include provisions that assure that industrial development will be located, designed, or constructed in a manner that assures no net loss of shoreline ecological functions and such that it does not have significant adverse impacts to other shoreline resources and values.

     Master programs should require that industrial development consider incorporating public access as mitigation for impacts to shoreline resources and values unless public access cannot be provided in a manner that does not result in significant interference with operations or hazards to life or property, as provided in WAC 173-26-221(4).

     Where industrial use is proposed for location on land in public ownership, public access should be required. Industrial development and redevelopment should be encouraged to locate where environmental cleanup and restoration of the shoreline area can be incorporated. New nonwater-oriented industrial development should be prohibited on shorelines except when:

     (i) The use is part of a mixed-use project that includes water-dependent uses and provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration; or

     (ii) Navigability is severely limited at the proposed site; and the industrial use provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration.

     In areas designated for industrial use, nonwater-oriented industrial uses may be allowed if the site is physically separated from the shoreline by another property or public right of way.

     (g) In-stream structural uses. "In-stream structure" means a structure placed by humans within a stream or river waterward of the ordinary high-water mark 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.

     In-stream structures shall provide for the protection and preservation, of ecosystem-wide processes, ecological functions, and cultural resources, including, but not limited to, fish and fish passage, wildlife and water resources, shoreline critical areas, hydrogeological processes, and natural scenic vistas. The location and planning of in-stream structures shall give due consideration to the full range of public interests, watershed functions and processes, and environmental concerns, with special emphasis on protecting and restoring priority habitats and species.

     (h) Mining. Mining is the removal of sand, gravel, soil, minerals, and other earth materials for commercial and other uses. Historically, the most common form of mining in shoreline areas is for sand and gravel because of the geomorphic association of rivers and sand and gravel deposits. Mining in the shoreline generally alters the natural character, resources, and ecology of shorelines of the state and may impact critical shoreline resources and ecological functions of the shoreline. However, in some circumstances, mining may be designed to have benefits for shoreline resources, such as creation of off channel habitat for fish or habitat for wildlife. Activities associated with shoreline mining, such as processing and transportation, also generally have the potential to impact shoreline resources unless the impacts of those associated activities are evaluated and properly managed in accordance with applicable provisions of the master program.

     A shoreline master program should accomplish two purposes in addressing mining. First, identify where mining may be an appropriate use of the shoreline, which is addressed in this section and in the environment designation sections above. Second, ensure that when mining or associated activities in the shoreline are authorized, those activities will be properly sited, designed, conducted, and completed so that it will cause no net loss of ecological functions of the shoreline.

     (i) Identification of shoreline areas where mining may be designated as appropriate shall:

     (A) Be consistent with the environment designation provisions of WAC 173-26-211 and where applicable WAC 173-26-251(2) regarding shorelines of statewide significance; and

     (B) Be consistent with local government designation of mineral resource lands with long-term significance as provided for in RCW 36.70A.170 (1)(c), 36.70A.130, and 36.70A.131; and

     (C) Be based on a showing that mining is dependent on a shoreline location in the city or county, or portion thereof, which requires evaluation of geologic factors such as the distribution and availability of mineral resources for that jurisdiction, as well as evaluation of need for such mineral resources, economic, transportation, and land use factors. This showing may rely on analysis or studies prepared for purposes of GMA designations, be integrated with any relevant environmental review conducted under SEPA (chapter 43.21C RCW), or otherwise be shown in a manner consistent with RCW 90.58.100(1) and WAC 173-26-201 (2)(a).

     (ii) Master programs shall include policies and regulations for mining, when authorized, that accomplish the following:

     (A) New mining and associated activities shall be designed and conducted to comply with the regulations of the environment designation and the provisions applicable to critical areas where relevant. Accordingly, meeting the no net loss of ecological function standard shall include avoidance and mitigation of adverse impacts during the course of mining and reclamation. It is appropriate, however, to determine whether there will be no net loss of ecological function based on evaluation of final reclamation required for the site. Preference shall be given to mining proposals that result in the creation, restoration, or enhancement of habitat for priority species.

     (B) Master program provisions and permit requirements for mining should be coordinated with the requirements of chapter 78.44 RCW.

     (C) Master programs shall assure that proposed subsequent use of mined property is consistent with the provisions of the environment designation in which the property is located and that reclamation of disturbed shoreline areas provides appropriate ecological functions consistent with the setting.

     (D) Mining within the active channel or channels (a location waterward of the ordinary high-water mark) of a river shall not be permitted unless:

     (I) Removal of specified quantities of sand and gravel or other materials at specific locations will not adversely affect the natural processes of gravel transportation for the river system as a whole; and

     (II) The mining and any associated permitted activities will not have significant adverse impacts to habitat for priority species nor cause a net loss of ecological functions of the shoreline.

     (III) The determinations required by (h)(ii)(D)(I) and (II) of this subsection shall be made consistent with RCW 90.58.100(1) and WAC 173-26-201 (2)(a). Such evaluation of impacts should be appropriately integrated with relevant environmental review requirements of SEPA (chapter 43.21C RCW) and the SEPA rules (chapter 197-11 WAC).

     (IV) In considering renewal, extension or reauthorization of gravel bar and other in-channel mining operations in locations where they have previously been conducted, local government shall require compliance with this subsection (D) to the extent that no such review has previously been conducted. Where there has been prior review, local government shall review previous determinations comparable to the requirements of this section to assure compliance with this subsection (D) under current site conditions.

     (V) The provisions of this section do not apply to dredging of authorized navigation channels when conducted in accordance with WAC 173-26-231 (3)(f).

     (E) Mining within any channel migration zone that is within Shoreline Management Act jurisdiction shall require a shoreline conditional use permit.

     (i) Recreational development. Recreational development includes commercial and public facilities designed and used to provide recreational opportunities to the public. Master programs should assure that shoreline recreational development is given priority and is primarily related to access to, enjoyment and use of the water and shorelines of the state. Commercial recreational development should be consistent with the provisions for commercial development in (d) of this subsection. Provisions related to public recreational development shall assure that the facilities are located, designed and operated in a manner consistent with the purpose of the environment designation in which they are located and such that no net loss of shoreline ecological functions or ecosystem-wide processes results.

     In accordance with RCW 90.58.100(4), master program provisions shall reflect that state-owned shorelines are particularly adapted to providing wilderness beaches, ecological study areas, and other recreational uses for the public and give appropriate special consideration to the same.

     For all jurisdictions planning under the Growth Management Act, master program recreation policies shall be consistent with growth projections and level-of-service standards established by the applicable comprehensive plan.

     (j) Residential development. Single-family residences are the most common form of shoreline development and are identified as a priority use when developed in a manner consistent with control of pollution and prevention of damage to the natural environment. Without proper management, single-family residential use can cause significant damage to the shoreline area through cumulative impacts from shoreline armoring, storm water runoff, septic systems, introduction of pollutants, and vegetation modification and removal. Residential development also includes multifamily development and the creation of new residential lots through land division.

     Master programs shall include policies and regulations that assure no net loss of shoreline ecological functions will result from residential development. Such provisions should include specific regulations for setbacks and buffer areas, density, shoreline armoring, vegetation conservation requirements, and, where applicable, on-site sewage system standards for all residential development and uses and applicable to divisions of land in shoreline jurisdiction.

     Residential development, including appurtenant structures and uses, should be sufficiently set back from steep slopes and shorelines vulnerable to erosion so that structural improvements, including bluff walls and other stabilization structures, are not required to protect such structures and uses. (See RCW 90.58.100(6).)

     New over-water residences, including floating homes, are not a preferred use and should be prohibited. It is recognized that certain existing communities of floating and/or over-water homes exist and should be reasonably accommodated to allow improvements associated with life safety matters and property rights to be addressed provided that any expansion of existing communities is the minimum necessary to assure consistency with constitutional and other legal limitations that protect private property.

     New multiunit residential development, including the subdivision of land for more than four parcels, should provide community and/or public access in conformance to the local government's public access planning and this chapter.

     Master programs shall include standards for the creation of new residential lots through land division that accomplish the following:

     (i) Plats and subdivisions must be designed, configured and developed in a manner that assures that no net loss of ecological functions results from the plat or subdivision at full build-out of all lots.

     (ii) Prevent the need for new shoreline stabilization or flood hazard reduction measures that would cause significant impacts to other properties or public improvements or a net loss of shoreline ecological functions.

     (iii) Implement the provisions of WAC 173-26-211 and 173-26-221.

     (k) Transportation and parking. Master programs shall include policies and regulations to provide safe, reasonable, and adequate circulation systems to shorelines.

     Transportation and parking plans and projects shall be consistent with the master program public access policies, public access plan, and environmental protection provisions.

     Circulation system planning shall include systems for pedestrian, bicycle, and public transportation where appropriate. Circulation planning and projects should support existing and proposed shoreline uses that are consistent with the master program.

     Plan, locate, and design proposed transportation and parking facilities where routes will have the least possible adverse effect on unique or fragile shoreline features, will not result in a net loss of shoreline ecological functions or adversely impact existing or planned water-dependent uses. Where other options are available and feasible, new roads or road expansions should not be built within shoreline jurisdiction.

     Parking facilities in shorelines are not a preferred use and shall be allowed only as necessary to support an authorized use. Shoreline master programs shall include policies and regulations to minimize the environmental and visual impacts of parking facilities.

     (l) Utilities. These provisions apply to services and facilities that produce, convey, store, or process power, gas, sewage, communications, oil, waste, and the like. On-site utility features serving a primary use, such as a water, sewer or gas line to a residence, are "accessory utilities" and shall be considered a part of the primary use.

     Master programs shall include provisions to assure that:

     All utility facilities are designed and located to assure no net loss of shoreline ecological functions, preserve the natural landscape, and minimize conflicts with present and planned land and shoreline uses while meeting the needs of future populations in areas planned to accommodate growth.

     Utility production and processing facilities, such as power plants and sewage treatment plants, or parts of those facilities, that are nonwater-oriented shall not be allowed in shoreline areas unless it can be demonstrated that no other feasible option is available.

     Transmission facilities for the conveyance of services, such as power lines, cables, and pipelines, shall be located outside of the shoreline area where feasible and when necessarily located within the shoreline area shall assure no net loss of shoreline ecological functions.

     Utilities should be located in existing rights of way and corridors whenever possible.

     Development of pipelines and cables on tidelands, particularly those running roughly parallel to the shoreline, and development of facilities that may require periodic maintenance which disrupt shoreline ecological functions should be discouraged except where no other feasible alternative exists. When permitted, provisions shall assure that the facilities do not result in a net loss of shoreline ecological functions or significant impacts to other shoreline resources and values.

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NEW SECTION
WAC 173-26-251   Shorelines of statewide significance.   (1) Applicability. The following section applies to local governments preparing master programs that include shorelines of statewide significance as defined in RCW 90.58.030.

     (2) Principles. Chapter 90.58 RCW raises the status of shorelines of statewide significance in two ways. First, the Shoreline Management Act sets specific preferences for uses of shorelines of statewide significance. RCW 90.58.020 states:

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

     (1) Recognize and protect the statewide interest over local interest;

     (2) Preserve the natural character of the shoreline;

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

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

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

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

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

     Second, the Shoreline Management Act calls for a higher level of effort in implementing its objectives on shorelines of statewide significance. RCW 90.58.090(5) states:

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

     Optimum implementation involves special emphasis on statewide objectives and consultation with state agencies. The state's interests may vary, depending upon the geographic region, type of shoreline, and local conditions. Optimum implementation may involve ensuring that other comprehensive planning policies and regulations support Shoreline Management Act objectives.

     Because shoreline ecological resources are linked to other environments, implementation of ecological objectives requires effective management of whole ecosystems. Optimum implementation places a greater imperative on identifying, understanding, and managing ecosystem-wide processes and ecological functions that sustain resources of statewide importance.

     (3) Master program provisions for shorelines of statewide significance. Because shorelines of statewide significance are major resources from which all people of the state derive benefit, local governments that are preparing master program provisions for shorelines of statewide significance shall implement the following:

     (a) Statewide interest. To recognize and protect statewide interest over local interest, consult with applicable state agencies, affected Indian tribes, and statewide interest groups and consider their recommendations in preparing shoreline master program provisions. Recognize and take into account state agencies' policies, programs, and recommendations in developing use regulations. For example, if an anadromous fish species is affected, the Washington state departments of fish and wildlife and ecology and the governor's salmon recovery office, as well as affected Indian tribes, should, at a minimum, be consulted.

     (b) Preserving resources for future generations. Prepare master program provisions on the basis of preserving the shorelines for future generations. For example, actions that would convert resources into irreversible uses or detrimentally alter natural conditions characteristic of shorelines of statewide significance should be severely limited. Where natural resources of statewide importance are being diminished over time, master programs shall include provisions to contribute to the restoration of those resources.

     (c) Priority uses. Establish shoreline environment designation policies, boundaries, and use provisions that give preference to those uses described in RCW 90.58.020 (1) through (7). More specifically:

     (i) Identify the extent and importance of ecological resources of statewide importance and potential impacts to those resources, both inside and outside the local government's geographic jurisdiction.

     (ii) Preserve sufficient shorelands and submerged lands to accommodate current and projected demand for economic resources of statewide importance, such as commercial shellfish beds and navigable harbors. Base projections on statewide or regional analyses, requirements for essential public facilities, and comment from related industry associations, affected Indian tribes, and state agencies.

     (iii) Base public access and recreation requirements on demand projections that take into account the activities of state agencies and the interests of the citizens of the state to visit public shorelines with special scenic qualities or cultural or recreational opportunities.

     (d) Resources of statewide importance. Establish development standards that:

     (i) Ensure the long-term protection of ecological resources of statewide importance, such as anadromous fish habitats, forage fish spawning and rearing areas, shellfish beds, and unique environments. Standards shall consider incremental and cumulative impacts of permitted development and include provisions to insure no net loss of shoreline ecosystems and ecosystem-wide processes.

     (ii) Provide for the shoreline needs of water-oriented uses and other shoreline economic resources of statewide importance.

     (iii) Provide for the right of the public to use, access, and enjoy public shoreline resources of statewide importance.

     (e) Comprehensive plan consistency. Assure that other local comprehensive plan provisions are consistent with and support as a high priority the policies for shorelines of statewide significance. Specifically, shoreline master programs should include policies that incorporate the priorities and optimum implementation directives of chapter 90.58 RCW into comprehensive plan provisions and implementing development regulations.

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PART IV

((GUIDELINES -- OPTIONAL APPROACH)) OCEAN MANAGEMENT((PART V

OCEAN MANAGEMENT))
REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 173-26-170 Purpose of Part III.
WAC 173-26-180 Applicability of Part III.
WAC 173-26-190 Master program contents.
WAC 173-26-200 Comprehensive process to prepare or amend shoreline master programs.
WAC 173-26-210 Environment designation system.
WAC 173-26-220 General master program provisions.
WAC 173-26-230 Shoreline modifications.
WAC 173-26-240 Shoreline uses.
WAC 173-26-250 Shorelines of statewide significance.
WAC 173-26-270 Purpose of Part IV.
WAC 173-26-280 Applicability of Part IV.
WAC 173-26-290 Master program contents.
WAC 173-26-300 Comprehensive process to prepare or amend shoreline master programs.
WAC 173-26-310 Environment designation system.
WAC 173-26-320 General master program provisions.
WAC 173-26-330 Shoreline modifications.
WAC 173-26-340 Shoreline uses.
WAC 173-26-350 Shorelines of statewide significance.

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