Washington State Environmental Laws

1
Washington State Environmental Laws

• October 4, 2006

Presented by Ken Lederman Riddell Williams P.S.
2

• 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

3
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

4
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

5
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
  spills

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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

7
Water Pollution Control Act

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

8
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
  law
• 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
  90.48.450

9
Water Pollution Control Act

• Ecology approves all proposals for sewage
  treatment plants (improvements extensions)
• Ecology reviews applications and issues NPDES
  Permits
• 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
  regulations

10
Stormwater Controls

• Stormwater nonpoint source of pollution
• Runoff from all surfaces, not just urban
  environment
• Currently the leading source of most
  environmental contamination of water sources in
  Washington
• 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
  acres

11
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

12
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

13
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
  surfaces
• Doesnt apply to impervious surfaces outside of
  project
• Erosion control requirements from construction
  sites
• Attempts to establish consistency with federal
  regulations
• NOT a rule or regulation
• Guidance document to be used in the permit phase
• Limitations enforced through NPDES Permits

14
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

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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
  right
• 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
  90.03.380.

16
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
  setting
• 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
  abandonment
• Cant carry the right to a newly purchased piece
  of property

17
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
  right
• Priority date relates back to date of filing of
  application

18
Water Law

• Water Rights Permit
• Changes to Permit must follow separate
  application
• 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

19
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
  protection
• Ecology now enforcing Metering Statute (RCW
  90.03.360)
• Reserved rights
• Winters Doctrine Tribal reservations have
  implied water right to carry out purposes for
  which the reservation was created

20
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
  adjudicated
• Cumbersome
• Acquavella 20 years old, 3 Supreme Court
  opinions and counting, 4000 participants
  representing 40000 users, tribal use issues,
  appointment of independent Watermaster, etc…

21
Water Law

• Recent programs and rule changes
• Dual track water right applications
• Usually, everyone has to get in line (leads to
  lawsuits)
• 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
  conflicts
• 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

22
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
  them
• Covers all impaired water bodies in WA
• Designed to ensure water quality standards are
  met
• Must be considered under RCW 90.54, so will
  affect water rights decisions as well as water
  quality
• 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

23
Washington Clean Air Act

• Goals
• Preserve, protect, and enhance air quality
• Promote regional air pollution control
  authorities
• 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

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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
  (SCAPCA)
• South West Air Pollution Control Authority
  (SWAPCA)
• Ecology covers all other areas
• Agency / authority programs must be as stringent
  or more stringent than Ecology

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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
  available
• All air contaminant sources must obtain renewable
  permits
• 5 year period
• Can be modified or amended at request of permitee
• Local air authority can apply to operate permit
  system
• Includes agricultural burning (wheat, weed,
  bluegrass, etc…)

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Washington Clean Air Act

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

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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
  efficient)
• 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
  stations)
• Lots and lots of public participation
• VERY SUCCESSFUL
• 4800 NFAs (53), 3300 active cleanups (36), 1000
  cleanups pending (11)

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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
  occurred)
• Liability imposed on (1) owners / operators of
  contaminated property (2) generators /
  arrangers and (3) transporters of hazardous
  substances
• 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

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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??

30
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
  products)
• 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
  cleanups

31
Model Toxics Control Act

• Cleanup Standards
• Set by Department of Ecology Chapter 173-340
  WAC
• Goal protection of human health and environment
• Use of permanent solutions to maximum extent
  practicable
• 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
  property
• Incorporation of permit requirements into the
  cleanup action plan

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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
  environment
• Each medium receives a Cleanup Level
• Must achieve cleanup level at a Point of
  Compliance
• 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
  receptors

33
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
  substances
• Must assess impact on terrestrial ecological
  receptors
• Method C for every other kind of cleanup
• When Method A or B levels are not technically
  possible
• Similar to Method B levels of calculating cleanup
  levels
• Less stringent exposure assumptions good for
  industrial sites

34
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
  (RI/FS)
• Determine where contamination has come to be
  located
• 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
  protection
• Enforcement orders (last resort or emergency
  situation)

35
Model Toxics Control Act

• Enforcement provisions
• Citizen suits
• To force ecology to perform a non-discretionary
  duty
• 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
  novo
• No other way to get to court

36
Model Toxics Control Act

• Brownfields / Redevelopment of Contaminated
  Property
• Not statutory!
• Criteria for brownfields redevelopment
• Yields substantial new resources to facilitate
  cleanup
• 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

37
Model Toxics Control Act

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

38
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
• VERY CONFUSING
• Does not cover domestic sewage, wastewater
  discharges, agricultural waste, asphalt or wood
  waste, recycled oil filters, etc..
• Recyclables (oil, anti-freeze, E-waste)

39
Hazardous Waste Management Act

• Definitions
• Dangerous Waste all discarded or abandoned
  materials which pose a hazard to human health and
  environment
• Extremely Hazardous Waste all dangerous waste
  which
• 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

40
Hazardous Waste Management Act

• More stringent that RCRA (broader, less
  exemptions)
• Governs all Treatment, Storage, Disposal
  Facilities (TSDs)
• Enforces the land ban
• Includes both civil and criminal enforcement
  power
• 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

41
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

42
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
  practices

43
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
  resource
• May be conducted 5 days after notification with
  no application or permit needed

44
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

45
Forest Practices Act

• Reforestation
• Must occur within 3 years after forest activities
  completed
• DNR must review and approve reforestation
  activities, or additional activities may be
  required
• 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
  damages
• Can include a lien against the property

46
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
  analyzed
• No substantive requirements
• BUT the procedural requirements are significant
  determinants of substantive decision-making

47
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
  capricious
• Determination of non-significance - DNS
• Must be based on demonstration that environmental
  factors were considered to establish prima facie
  compliance
• Reversed on appeal? Only if clearly erroneous
• Mitigated determination of non-significance -
  MDNS
• Stopping impacts ahead of time
• Can be very controversial removes public input

48
State Environmental Policy Act

• Determination of Significance
• If any action might significantly impact the
  environment
• 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
  documentation)
• Prep for the Environmental Impact Statement (EIS)
• Notification to any affected party for review
  comment

49
State Environmental Policy Act

• Environmental Impact Statement
• Provides more intense environmental scrutiny of
  project
• 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)

50
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
  authority
• Judicially enforceable substantive standards on
  government action / decision-making

51
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
  interest
• Promotes planned and rational effort to balance
  environmental protection with private property
  interests
• Statewide interest over local interest
• Increase and preserve public access

52
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

53
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

54
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
  homes
• Does not include agricultural activities

55
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)

56
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

57
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
  designations
• Money?!?!?!

58
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 /
  development
• Central concept concentrate growth in existing
  urban areas
• Urban Growth Area (UGA) permanent intensive
  use
• Outside a UGA (i.e. rural areas), only
  low-density development can occur

59
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
  numbers)
• Any city with the aforementioned counties
• Volunteers
• Any city or county can opt in

60
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
  UGA
• Must meet very specific criteria to prevent
  development of areas surround the master planned
  community / resort

61
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
  capacity
• Rural low intensity areas should be protected
  from conversion into sprawl
• Transportation estimated traffic impacts and
  future facility / service needs

62
Growth Management Act

• All comprehensive plans subject to a 10-year
  review
• 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
  Act)
• Presumption of validity (burden on challenger)
• Noncompliance? Possible sanctions from governor
  (including withholding tax revenue)

63
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
  areas
• Local shoreline master plan is considered an
  element of the comprehensive plan
• Current trend COMPLAINING!
• I-933

64
Questions?

• Please contact me any time with additional
  questions.

Ken Lederman 206.624.3600 klederman_at_riddellwilliam
s.com