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Washington State Environmental Laws


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Title: Washington State Environmental Laws

Washington State Environmental Laws
  • October 4, 2006

Presented by Ken Lederman Riddell Williams P.S.
  • Brief overview of important state laws and
    regulatory framework
  • Trends in state environmental regulation
  • Caveats
  • Wont be able to cover everything
  • The real meat of the environmental laws in WA
    is in the adopted rules and regulations
  • May have to defer in certain areas

Types of State Environmental Laws
  • Command control
  • Direct regulation over individual, municipal, and
    corporate activities
  • Water Pollution Control Act, Chapter 90.48 RCW
  • Washington Clean Air Act, Chapter 70.94 RCW
  • Model Toxics Control Act, Chapter 70.105D RCW
  • Haz. Waste Management Act, Chapter 70.105 RCW
  • Forest Practices Act, Chapter 76.09 RCW
  • Water Law
  • Groundwater Regulations
  • Stormwater Regulations

Types of State Environmental Laws
  • Indirect regulation
  • Requires local governments to adopt rules and to
    regulate development with state oversight
  • Growth Management Act, Chapter 36.70A RCW
  • Shoreline Management Act, Chapter 90.58 RCW
  • State Environmental Policy Act, Ch. 43.21A RCW

Water Pollution Control Act
  • Ensures protection of all waters of the state for
    public health and enjoyment
  • Prevents and controls pollution with all
    available and reasonable methods
  • Federally delegated program 90.48.260
  • Ecology carries out with EPA oversight
  • Covers Point Source Discharge, Non-Point Source
    Discharge, and National Pollution Discharge
    Elimination Permits (NPDES)
  • Does not cover energy facilities
  • Handled by Energy Facilities Site Evaluation
    Council (EFSEC)
  • Compensation schedule for NRD resulting from oil

Water Pollution Control Act
  • Waters of the State 90.48.020
  • Very broad covers all fresh and salt water
    bodies and watercourses AND covers all
    groundwater resources
  • Pollution 90.48.020
  • All chemical and biological properties
  • Changes in temperature, turbidity, etc
  • Any contamination or alteration of water
  • Interpreted very broadly by the courts

Water Pollution Control Act
  • Surface water standards
  • Classified from AA through C, with Lake Class
  • AA all water supply, stock, fish habitat,
  • C only industrial supply, recreation, commerce,
  • Effluent Limitation Approach
  • Specific limits for a variety of toxic pollutants
  • Discharge limits (municipal, commercial, and
  • Antidegradation
  • Mandatory protection of natural conditions of
  • Limited exceptions
  • Cannot lower water quality conditions beyond
  • Mixing zone
  • Areas where water quality standards are not met
  • Must comply with All Known Available
    Reasonable methods of prevention, control,
    Treatment (AKART)

Water Pollution Control Act
  • Enforcement powers
  • Any action in law (injunctive relief) may be
    brought by AGO
  • Any act that causes or tends to cause pollution
    is unlawful
  • Includes Organic and Inorganic Matter
  • Issue Notice of Violation (NOV) if one violates
    law or creates substantial potential to violate
  • 30 days to correct the problem or face penalties
  • Criminal violations
  • Jail time 10,000 for willful violations
  • Civil penalties
  • Up to 10,000 per day for each violation
  • Factors history severity remedial measures
  • Avoid conversion of agricultural land. RCW

Water Pollution Control Act
  • Ecology approves all proposals for sewage
    treatment plants (improvements extensions)
  • Ecology reviews applications and issues NPDES
  • Commercial, municipal, and industrial discharges
    into waters of the state must have NPDES Permit
    from Ecology or EFSEC
  • Local government can develop their own program to
    be approved by Ecology
  • Also State Waste Discharge Permits and
    Construction StormWater Discharge Permits
  • Ecology sets water quality standards for State
  • Coordination with Forest Practices rules and

Stormwater Controls
  • Stormwater nonpoint source of pollution
  • Runoff from all surfaces, not just urban
  • Currently the leading source of most
    environmental contamination of water sources in
  • 1987 Congress amends Clean Water Act
  • Discharge of stormwater from industries and
    municipalities is a point source requiring an
    NPDES permit
  • WA has delegated authority, so it became part of
    our state water quality control program
  • Two Phases
  • Phase I Ecology issuance of Stormwater NPDES
    General Permits to cover discharges from sites of
    5 or more acres, and municipalities with more
    than 100,000 people
  • Phase II Expansion to all municipalities in
    urbanized areas, and construction sites from 1-5

Stormwater Controls
  • General Permit
  • Requires implementation of a stormwater
    management program
  • Must reduce the discharge of pollutants, reduce
    harm to receiving waters, eliminate all
    inappropriate discharges, and make progress
    towards complying with applicable standards
    (water, groundwater, and sediment)
  • Phase II pushes General Permits onto thousands of
    additional construction sites
  • Includes evaluation process for cities of more
    than 10,000
  • All Phase II permits targeted for December 2002

Stormwater Controls
  • Stormwater Management Manual
  • Promulgated by Ecology with help from WSDOT
  • Separate manuals for Eastern and Western WA
  • Objective provide a commonly accepted set of
    standards and guidance for stormwater control
    measures at applicable sites
  • For use by local governments, state agencies, and
    private business
  • Expectation established practices for
    development and redevelopment activities will
    lead to compliance with water quality standards

Stormwater Controls
  • Standards
  • Must use Best Management Practices (BMPs)
  • All projects must use appropriate ON-SITE
    stormwater management techniques (recent change)
  • Flow control requirements to address peak flows
  • Redevelopment requirements are generally the same
    as requirements for new projects with impervious
  • Doesnt apply to impervious surfaces outside of
  • Erosion control requirements from construction
  • Attempts to establish consistency with federal
  • NOT a rule or regulation
  • Guidance document to be used in the permit phase
  • Limitations enforced through NPDES Permits

Water Law
  • Washington overhauled the State Water Code and
    adjudication process during the past 5 years
  • Working to reduce a 10-12 year backlog
  • Impeding salmon recovery efforts
  • Impeding development, especially in rural areas
  • Basic primer on Washington Water Law concepts and
    new trends

Water Law
  • Washington Water Law
  • All waters belong to the public, subject to the
    existing rights of others. RCW 90.03.010
  • Private rights may not be acquired when use
    threatens the public interest. RCW 90.03.290
  • Private rights obtained from State after
    evaluation of impact on public interest
  • Once obtained, your water right is a property
  • Cannot be taken without just compensation
  • Appurtenant to the land on which it is used
  • Can NOT be used on other land without a prior
    approval from state for a transfer. RCW

Water Law
  • Doctrine of Prior Appropriation
  • First in time, first in right
  • Applicable throughout the western states
  • Water right comes into existence only by applying
    the water to a beneficial use
  • Agriculture, mining, power, industrial, or
    domestic use
  • Didnt allow for leaving the water in its natural
  • Fixed quantity provided
  • Any excess use, or waste is strictly prohibited
  • Cannot use more than allocated amount (acre feet,
    cfs, etc)
  • Perfecting a right putting it to beneficial use
  • Priority date of water right is date that you
    started to pursue it
  • Must act with due diligence
  • Perpetuity
  • Must be continuous use without a period of
  • Cant carry the right to a newly purchased piece
    of property

Water Law
  • Water Rights Permit
  • Issued by Ecology after an investigation that
    (1) water is available (2) water going to a
    beneficial use (3) water right will not impair
    other existing rights and (4) no detriment to
    public interest. RCW 90.03.290
  • Permit cancelled if you dont complete the
    project to which the water is directed in a
    specific time period
  • Once the water is put to use, certificate issued.
  • Establishes the important details of the water
  • Priority date relates back to date of filing of

Water Law
  • Water Rights Permit
  • Changes to Permit must follow separate
  • For change of place of use, point of diversion,
    or purpose
  • Cannot get a change in Quantity
  • Forfeiture / relinquishment
  • Failure to use for 5 consecutive years means you
    lose it
  • Some statutory exemptions apply (including use
    for municipal supply purposes, litigation, or
    determined future development)
  • Groundwater
  • Separate code (Chapter 90.44 RCW)
  • Basically, applies prior appropriation doctrine
    to groundwater
  • NO permit required for stock-watering, watering a
    ½ acre parcel of land, or for a single domestic
    use not exceeding 5000 gallons a day
  • Statutory establishment of Hydraulic Continuity
  • Cant have groundwater if it affects surface
    water rights. 90.44.030

Water Law
  • Instream flows
  • Retention of water in waterbodies to protect
    fish, wildlife, and ecological values (serve
    both quantity and quality)
  • Water Resources Act - Chapter 90.54 RCW
  • Combines quality quantity with water
    resource decisions
  • Established fundamentals of water management
  • Beneficial use can include instream uses
  • Future allocations based on maximum net benefits
    to public
  • All water rights permits are conditioned to
    protect instream flows necessary to protect
    ecological values
  • Becomes an appropriation entitled to legal
  • Ecology now enforcing Metering Statute (RCW
  • Reserved rights
  • Winters Doctrine Tribal reservations have
    implied water right to carry out purposes for
    which the reservation was created

Water Law
  • Adjudications
  • A quiet title action for water rights
  • Lawsuit requiring proof of a water claim
  • Results in a Decree establishing all of the
    rights and priorities of water rights in a
    particular drainage basin
  • Joins ALL persons claiming right to divert water
  • Problem
  • Supposed to identify all rights before Water Code
  • Very few held, so majority of water is not
  • Cumbersome
  • Acquavella 20 years old, 3 Supreme Court
    opinions and counting, 4000 participants
    representing 40000 users, tribal use issues,
    appointment of independent Watermaster, etc

Water Law
  • Recent programs and rule changes
  • Dual track water right applications
  • Usually, everyone has to get in line (leads to
  • New program two separate lines
  • 1 line for water right applications
  • 1 line for water right change applications
  • Allows process of change applications without
    forcing consideration of effect on new water
    right applications
  • Ecology can still prioritize change applications,
    but not new ones
  • Water conservancy boards
  • Creation of locally-created boards to process
    water rights changes, such as change of use, etc
  • NOT for new water rights applications or tribal
    water rights
  • Streamlines the process, but raises specter for
  • Ecology reviews decisions and can appeal to PCHB
  • 2003 Legislative session - Ecology denied ability
    to use water-quality laws to limit water rights
    and/or water withdrawals

Water Law
  • Total Maximum Daily Loads (TMDLs)
  • Ecology and EPA enter agreement in 1997 for
    implementation of TMDLs for the 303(d) list
  • If Ecology cant complete, then EPA does it for
  • Covers all impaired water bodies in WA
  • Designed to ensure water quality standards are
  • Must be considered under RCW 90.54, so will
    affect water rights decisions as well as water
  • Pend Oreille decision (Washington Supreme Court)
  • A water right does not excuse compliance with CWA
    or Water Pollution Control Act, even if it
    affects or impacts your water right
  • Important for energy facilities

Washington Clean Air Act
  • Goals
  • Preserve, protect, and enhance air quality
  • Promote regional air pollution control
  • Achieve significant reductions in both small and
    large quantity sources of emissions
  • Control wood stove emissions
  • Education rather than enforcement
  • Can issue no wood stove burning notices
  • Another federally delegated program
  • Standards of Federal Clean Air Act are
    coordinated to secure benefits of federal funding
  • NAAQS enforced through state regulatory system

Washington Clean Air Act
  • Pollution control
  • Controls emissions of all airborne contaminants,
    including dust, smoke, matter, gas, vapor, etc
  • Unlawful to cause air pollution or permit air
    pollution to be caused by others
  • Multi-county authorities established to monitor
    and enforce air quality laws
  • Puget Sound Clean Air Agency (PSCAA)
  • Spokane County Air Pollution Control Authority
  • South West Air Pollution Control Authority
  • Ecology covers all other areas
  • Agency / authority programs must be as stringent
    or more stringent than Ecology

Washington Clean Air Act
  • Regulatory authority
  • Ecology or board must approve plans and specs for
    construction of new sources of air emissions (new
    source review)
  • Same is required for replacement or substantial
    alteration of existing sources
  • RACT all existing sources must install and
    operate Reasonably Available Control Technology
  • Must achieve lowest emission limit possible by
    application of technology that is reasonably
  • All air contaminant sources must obtain renewable
  • 5 year period
  • Can be modified or amended at request of permitee
  • Local air authority can apply to operate permit
  • Includes agricultural burning (wheat, weed,
    bluegrass, etc)

Washington Clean Air Act
  • Enforcement power
  • Notice of violation
  • Restraining order / injunction
  • Penalties
  • Criminal penalties for willful or negligent
  • Civil penalties for all excusable violations
  • Must first issue Notice of Correction in certain
  • Each act and each day is another potential
  • Current issues in Washington
  • Agricultural burning / ADA controversy
  • New source review (national)

Model Toxics Control Act
  • Adopted by Citizens Initiative in 1989-1990
  • NOT a federally delegated program
  • No Memorandum of Agreement with EPA, so MTCA
    determinations are not binding under CERCLA
  • Significant differences between CERCLA MTCA
  • Covers oil and petroleum products
  • Corrected the mistakes of CERCLA (more
  • Creation of both a State Toxics Control Account
    and a Local Toxics Control Account (to assist
    local govts with cleanups)
  • EPA still has authority to overfile and bring
    in CERCLA
  • Covers lots and lots of sites (meth labs gas
  • Lots and lots of public participation
  • 4800 NFAs (53), 3300 active cleanups (36), 1000
    cleanups pending (11)

Model Toxics Control Act
  • Basic legal principles
  • Strict liability no analysis of intent
  • Joint several liability once youre in,
    youre in for it all
  • Retroactive (doesnt matter when release
  • Liability imposed on (1) owners / operators of
    contaminated property (2) generators /
    arrangers and (3) transporters of hazardous
  • Potentially Liable Parties (PLPs)
  • Never forget the potentially in PLP
  • Covers all releases of hazardous substances
  • Broad - no requirement of active or
    intentional conduct
  • Limited judicial appeals
  • No pre-enforcement review
  • Severe penalties for failure to comply
  • 10,000 a day possible treble damages

Model Toxics Control Act
  • Parties who are not liable
  • Innocent landowners
  • Plume clause candidates
  • Lenders / mortgage holders
  • Victims of Act of God or Act of War
  • Victims of acts of third parties (sabotage)
  • Releases solely from application of pesticides
  • De minimis (liable, but for a finite amount)
  • Passive Migration??

Model Toxics Control Act
  • Recovering costs / funding
  • Private contribution actions
  • State Toxics Control Account (STCA)
  • Funded by Hazardous Substance Tax on petroleum
    products, pesticides, and chemicals (8,000
  • Also receives money from cost recovery, fines,
    penalties, fees, etc..
  • Local Toxics Control Account (LTCA)
  • Supported in same way
  • For use by local jurisdictions to assist with

Model Toxics Control Act
  • Cleanup Standards
  • Set by Department of Ecology Chapter 173-340
  • Goal protection of human health and environment
  • Use of permanent solutions to maximum extent
  • Cost / Benefit Analysis (disproportionality test)
  • Maintains compliance with Applicable Relevant
    Appropriate Requirements (ARARs)
  • Cleanup must meet all regulatory standards found
    in other environmental pollution control statutes
  • Covers Underground Storage Tanks (USTs) and
    Leaking Underground Storage Tanks (LUSTs)
  • New rules adopted in 2002
  • New standards of TPH, Arsenic, Lead, etc
  • New requirements to facilitate redevelopment of
  • Incorporation of permit requirements into the
    cleanup action plan

Model Toxics Control Act
  • Cleanup standards - How Clean is Clean?
  • Essentially, must remediate to the point that the
    remaining contamination no longer poses an
    unacceptable threat to human health and the
  • Each medium receives a Cleanup Level
  • Must achieve cleanup level at a Point of
  • Specific substances
  • Carcinogens must be cleaned to below a level that
    could cause an excess cancer risk in humans
  • Non-carcinogens must be cleaned to below a level
    that could cause illness in humans
  • Combination substances must be cleaned to below a
    level that could impact terrestrial or aquatic

Model Toxics Control Act
  • Cleanup standards
  • Method A for the straightforward cleanup
  • Provides numerical cleanup levels for 25-30 of
    the most common hazardous substances
  • Numerical levels set in the regulations
  • Method B for the more complex cleanup
  • Most common method for sites with unusual
    substances or combinations of substances
  • More stringent cleanup standards
  • Sets human-health risk levels for particular
  • Must assess impact on terrestrial ecological
  • Method C for every other kind of cleanup
  • When Method A or B levels are not technically
  • Similar to Method B levels of calculating cleanup
  • Less stringent exposure assumptions good for
    industrial sites

Model Toxics Control Act
  • Usual chain of events
  • Initial investigation site hazard assessment (1
    to 5)
  • Inclusion on state site hazard list
  • Identification of PLPs
  • Phase I II site assessments (optional)
  • Determine contaminants and scope of contamination
  • Remedial Investigation / Feasibility Study
  • Determine where contamination has come to be
  • Cleanup action plan / interim actions
  • Long-term monitoring / no further action
  • Land use restrictions (restrictive covenant /
    zoning overlay)
  • Implementation
  • Agreed order or consent decree
  • CD provides covenant not to sue and contribution
  • Enforcement orders (last resort or emergency

Model Toxics Control Act
  • Enforcement provisions
  • Citizen suits
  • To force ecology to perform a non-discretionary
  • Direct suits against Ecology
  • Must give notice of intent to sue
  • Petition for reimbursement
  • PLP pays money, then asks for it back, and can
    then sue once Ecology refuses
  • Counter-claim to Ecology suit
  • Challenges reviewed under arbitrary and
    capricious standard
  • Liability / PLP determinations are reviewed de
  • No other way to get to court

Model Toxics Control Act
  • Brownfields / Redevelopment of Contaminated
  • Not statutory!
  • Criteria for brownfields redevelopment
  • Yields substantial new resources to facilitate
  • Expedites cleanup
  • Redevelopment will not further contribute to
    release of waste, impede remedial actions, or
    increase health risks
  • Prospective Purchaser Agreements (PPA)
  • Settlement with a non-liable party who wishes to
    purchase contaminated property, clean it up, and
    redevelop it
  • Only 13 since 1986, and not binding on EPA
  • Successor liability protection for the purchaser
    of property
  • Brownfields funding
  • grants from EPA supervised by Office of Trade
    Economic Development (OTED)
  • Expanded technical assistance available

Model Toxics Control Act
  • Voluntary cleanup program
  • For simple sites (gas stations,
    single-contaminants, etc)
  • Independent cleanup with limited Ecology
  • Must obtain Ecology approval at end of process to
    ensure that the cleanup performed is the
    substantial equivalent of an Ecology-supervised
  • Cost-effective (dont pay for Ecologys oversight
  • Current / future trends
  • Constitutional challenges
  • Area-wide contamination
  • Complex cleanups (Spokane River, Mining Sites,
    Duwamish Waterway, Lake Roosevelt,
  • New regulations
  • New standards remediation levels Financial
  • Model remedies?

Hazardous Waste Management Act
  • State system for enforcement of RCRA
  • Federally delegated program
  • Equivalent or more stringent than federal RCRA
  • Provides cradle-to-grave regulation of
    hazardous waste and dangerous waste
  • Pre-empts local governments from regulating
    hazardous waste facilities
  • Does not cover domestic sewage, wastewater
    discharges, agricultural waste, asphalt or wood
    waste, recycled oil filters, etc..
  • Recyclables (oil, anti-freeze, E-waste)

Hazardous Waste Management Act
  • Definitions
  • Dangerous Waste all discarded or abandoned
    materials which pose a hazard to human health and
  • Extremely Hazardous Waste all dangerous waste
  • will persist
  • presents a significant environmental hazard
  • is highly toxic
  • Hazardous Waste all dangerous waste that
    designates as hazardous waste and all extremely
    hazardous waste
  • Listed by adopted regulations
  • Meets 1 of 4 characteristics ignitability,
    reactivity, corrosivity, or toxicity
  • Contained in Waste for complex mixtures

Hazardous Waste Management Act
  • More stringent that RCRA (broader, less
  • Governs all Treatment, Storage, Disposal
    Facilities (TSDs)
  • Enforces the land ban
  • Includes both civil and criminal enforcement
  • Manifest requirements for all transportation of
    hazardous waste
  • Small Quantity Generators and Generators of
    Household Wastes are Exempt from most
    requirements (Rule of 22)
  • TSD permits for facilities
  • Meets basic minimum technical standards (liners,
    GW monitoring, etc)
  • Clean Closure requirements
  • Financial assurance requirements
  • Prevents the dump and run

Hazardous Waste Management Act
  • Corrective Action
  • Ecology can order TSD to address pre-existing or
    recently-caused contamination
  • Covers any hazardous substance released at a TSD
  • Can go beyond the TSD property boundary
  • Corrective Action performed primarily through a
    Joint MTCA / RCRA Corrective Action Order
  • RCRA requirements enforced with overlay of MTCA
    cleanup standards
  • Regulation vs. Enforcement / Liability

Forest Practices Act
  • Goal
  • Sound natural resource protection
  • Maintenance of forest products industry
  • Protection of soils, water quality, recreation,
    scenic beauty, species, etc
  • Creation of Forest Practices Board
  • 11 members
  • Ecology, Public Lands, CTED, Agriculture, Elected
    County Legislator, 5 public landowners appointed
    by the Governor
  • No local governmental control over forest

Forest Practices Act
  • Adoption of Forest Practice Rules
  • Class I forest practices that have no direct
    potential for damaging a public resource
  • No application or permit needed
  • Class II forest practices which have a less
    than ordinary potential for damaging public
  • May be conducted 5 days after notification with
    no application or permit needed

Forest Practices Act
  • Adoption of Forest Practice Rules
  • Class III anything outside I and II
  • Must be approved by DNR within 30 days of receipt
    of application
  • Class IV anything outside I and II where a
    potential for substantial impact is noted
  • Environmental Impact Statement (EIS) required if
    DNR determines it to be necessary (all other
    classes exempt from SEPA)
  • Must be approved by DNR after EIS and within 30
    days of receipt of application

Forest Practices Act
  • Reforestation
  • Must occur within 3 years after forest activities
  • DNR must review and approve reforestation
    activities, or additional activities may be
  • Conversion
  • Must notify DNR if land to be forested will be
    converted to a use other than commercial timber
    production within 3 years
  • If so, reforestation requirements do not apply
  • Enforcement
  • Includes water quality and forest resource
  • Can include a lien against the property

State Environmental Policy Act
  • Modeled after NEPA
  • Commits all agencies of state local government
    to maintain and improve environmental quality
  • Full compliance with procedural requirements
  • Recognition of each persons fundamental and
    inalienable right to a healthful environment
  • Ministerial decisions become discretionary based
    on environmental consequences
  • Alternatives must be reviewed, proposed, and
  • No substantive requirements
  • BUT the procedural requirements are significant
    determinants of substantive decision-making

State Environmental Policy Act
  • How it works
  • Submitting a proposal for development triggers
    SEPA requirements
  • Threshold determination
  • Documented through an environmental checklist
  • Primary source of info documentation repository
  • Determination of significance - DS
  • Reversed on appeal? Only if arbitrary
  • Determination of non-significance - DNS
  • Must be based on demonstration that environmental
    factors were considered to establish prima facie
  • Reversed on appeal? Only if clearly erroneous
  • Mitigated determination of non-significance -
  • Stopping impacts ahead of time
  • Can be very controversial removes public input

State Environmental Policy Act
  • Determination of Significance
  • If any action might significantly impact the
  • Very low standard (any moderate effect)
  • Focus on intensity of development and
    vulnerability of affected environment
  • No analysis of socio-economic benefits
  • No analysis of alternatives at this stage
  • Begin the scoping process (gathering all
  • Prep for the Environmental Impact Statement (EIS)
  • Notification to any affected party for review

State Environmental Policy Act
  • Environmental Impact Statement
  • Provides more intense environmental scrutiny of
  • Elements explain the project, the impacts, the
    alternatives, the short and long term
    consequences, and the resource commitments
  • Adequate? Governed by the rule of reason
  • Case by case review
  • Determine if effects and alternatives are
    sufficiently disclosed and substantiated
  • De novo review by court (no deference)
  • Must do Supplemental EIS if substantial changes
    proposed to project or new data is uncovered
    related to potential environmental impacts
  • You can use pre-existing or existing
    documentation in certain circumstances (no
    requirement of redundancy)

State Environmental Policy Act
  • Effects on substantive agency action
  • SEPA is stronger than NEPA
  • Local government can deny if SEPA identifies
    significant environmental impacts that cannot be
    mitigated under any proposed alternative
  • 3 primary effects
  • Must interpret and administer all state laws in
    accordance with SEPA
  • Supplements environmental decision-making
  • Judicially enforceable substantive standards on
    government action / decision-making

Shoreline Management Act
  • Designed to strike a balance between pressure for
    shoreline development and protection of shoreline
    ecological resources
  • Unrestricted construction is not in best public
  • Promotes planned and rational effort to balance
    environmental protection with private property
  • Statewide interest over local interest
  • Increase and preserve public access

Shoreline Management Act
  • Jurisdiction
  • 200 feet from the ordinary high water mark
  • Outside of that, no regulatory control
  • Once youre in a little, youre in for all
  • Shorelines of statewide significance granted
    greater protection
  • Designated by Legislature

Shoreline Management Act
  • State Local Interaction
  • Designed for cooperative relationship
  • Each local government develops a Shoreline Master
    Plan based on adopted Guidelines from Ecology
  • Ecology approves each Master Plan
  • Controls both development and uses
  • Local government has primary control, with
    state maintaining necessary oversight to protect
    the public interest
  • Local government sets forth shoreline
    designations (natural, recreational,
    residential, commercial, etc) in master program
  • Single family residences are preferred
  • Local government then administers the SMP
  • Ecology evaluates permit decisions

Shoreline Management Act
  • Development is allowed so long as it is
    consistent with SMA and the local Master Program
  • Substantial Development cannot be undertaken
    without a shoreline permit
  • Anything over 2500
  • Anything that interferes with normal public use
  • Does not include maintenance or repair
  • Does not include bulkheads for single family
  • Does not include agricultural activities

Shoreline Management Act
  • Substantial Development Permit
  • Issued by local governments for construction
  • Must be appealed by Ecology if inconsistent
  • Conditional Use Permit
  • For a conditional use or a change of use
  • Must be approved by Ecology (Permittee can appeal
    if denied or conditioned)
  • Variance
  • Allowing an otherwise unauthorized development
    within prohibited area (within an otherwise
    prohibited area or zone)
  • Must be approved by Ecology (permittee can appeal
    if denied or conditioned)

Shoreline Management Act
  • Appeals to Shoreline Hearings Board
  • 3 members of Pollution Control Hearings Board
  • 1 member of Association of Counties
  • 1 member of Association of Cities
  • 1 delegate from Dept. of Natural Resources
  • Must have at least 4 out of 6 for decision
  • A 3-3 tie affirms the status quo

Shoreline Management Act
  • New Guidelines
  • Implementation of performance standards
  • No reference to ESA requirements, but.
  • No effect on agriculture or single family homes
  • Restoration requirements
  • Protection of ecological functions and processes
  • Integration of GMA requirements
  • Local governments must adopt new guidelines and
    submit to Ecology for approval
  • Must inventory all shorelines and revise
  • Money?!?!?!

Growth Management Act
  • Determination of what development is desirable
    providing adequate facilities to meet the demand
    for private development
  • Local jurisdictions can no longer act as an
    independent or isolated entity
  • Coordination cooperation integration
  • Putting public facilities in place before new
    development occurs
  • Coordinate private development with public
    facilities (transportation)
  • Requirement of concurrency in planning /
  • Central concept concentrate growth in existing
    urban areas
  • Urban Growth Area (UGA) permanent intensive
  • Outside a UGA (i.e. rural areas), only
    low-density development can occur

Growth Management Act
  • Who must comply with GMA?
  • High-density areas
  • County with 50,000 people and 17 increase in
    population in past decade
  • County with more than 20 increase in population
    in the past decade (regardless of current
  • Any city with the aforementioned counties
  • Volunteers
  • Any city or county can opt in

Growth Management Act
  • Basic principles
  • Adoption of county- and city-wide planning policy
  • Designation of critical areas, agricultural
    lands, forest lands, and mineral resource lands
  • Adopt regulations to protect them
  • Use interim regulations until a comprehensive
    plan is in place
  • Critical Areas wetlands, floodplains, water
    recharge areas, critical habitat areas, hazard
    zones, etc
  • Designation of Urban Growth Areas (UGAs)
  • Adoption of a comprehensive plan
  • Must be submitted to state for approval
    (including amendments)
  • Master planned communities / resorts
  • Intensive development can be allowed outside of
  • Must meet very specific criteria to prevent
    development of areas surround the master planned
    community / resort

Growth Management Act
  • Comprehensive Plan Elements
  • Land Use distribution and location of land uses
    (housing, agricultural, etc)
  • Housing ensure vitality and character of
    established neighborhoods
  • Capital Facilities inventory of current
    facilities and forecast of future needs
  • Utilities location and current / future
  • Rural low intensity areas should be protected
    from conversion into sprawl
  • Transportation estimated traffic impacts and
    future facility / service needs

Growth Management Act
  • All comprehensive plans subject to a 10-year
  • Public participation required
  • Growth Management Hearings Boards
  • 3 Boards (Western, Central, and Eastern)
  • Hears appeals related to GMA compliance
  • Does NOT have jurisdiction to hear appeals on
    individual decisions on specific development
    projects (must be filed under Land Use Petition
  • Presumption of validity (burden on challenger)
  • Noncompliance? Possible sanctions from governor
    (including withholding tax revenue)

Growth Management Act
  • Major industrial developments can occur outside
    of UGA if certain conditions are met
  • Can NOT prohibit establishment of residential
    daycare facilities in commercial or residential
  • Local shoreline master plan is considered an
    element of the comprehensive plan
  • Current trend COMPLAINING!
  • I-933

  • Please contact me any time with additional

Ken Lederman206.624.3600klederman_at_riddellwilliam
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