The Shoreline Management Act was adopted by a vote of the people in 1972. It establishes a planning and regulatory framework for the shorelines of the state. Although counties and cities are the primary regulators under the SMA, the SMA recognizes the state has a significant interest in managing the shorelines of the state and gives the state authority to review local plans and permit decisions.

The Growth Management Act was adopted by the Legislature in two phases in 1990 and 1991 to address problems of unplanned and uncoordinated growth. Much of the GMA is limited to areas of the state with defined population levels or growth rates. However, the GMA’s requirements that local governments designate critical areas, including wetlands and critical fish and wildlife habitat, and protect these areas apply statewide. Counties may also choose to plan under the GMA. Although state agencies may review and comment on comprehensive plans and development regulations before they are adopted under the GMA, the GMA is based on the premise that planning choices are to be made at the local level, within the framework and requirements established by the GMA.

ESHB 1724 was enacted by the Legislature in 1995, based on the recommendations of the Governor’s Task Force on Regulatory Reform. The Task Force concluded that implementing the array of statutes enacted over time posed problems. It recommended a number of changes to the GMA, SMA, and other statutes to begin the process of integrating these statutes. The Task Force recognized that additional statutory changes would probably be necessary to further the integration process. The Commission was created by ESHB 1724 in part to continue these efforts.

ESHB 1724 initiated the integration of GMA and SMA by making shoreline master programs adopted under the SMA an element of GMA comprehensive plans. In implementing the changes made by ESHB 1724, Ecology developed proposed amendments to its existing shorelines guidelines and established an advisory committee to review and comment on its proposal. The advisory committee discussions showed that there were some issues that ESHB 1724 had not resolved and that the rule adoption process could not address.

In June 1997, the Commission established a workgroup to work towards a consensus agreement on issues related to the integration of GMA and SMA. The workgroup reached consensus on one issue. In other areas, it developed a list of options for further discussion and review. At its October 1997 meeting, the Commission established a subcommittee to use the work of the two previous efforts and try to reach a consensus on these issues. This issue paper is the product of the Subcommittee’s discussions.

Before 1995, RCW 90.58.060 stated that

Within one hundred twenty days from June 1, 1971, the department shall submit to local governments proposed guidelines consistent with RCW 90.58.020 for:

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

(b) Development of master programs for regulation of uses of shorelines of statewide significance.

The statute also established timelines for review, comment and final adoption. Ecology adopted Chapter 173-16 WAC, Shoreline Management Act Guidelines for Development of Master Programs in 1972. Prior to 1995, the statute did not specifically authorize subsequent amendments to the guidelines. WAC 173-16 was amended in:

1980 to incorporate provisions for aquaculture in response to legislation;

1985 to update the definition of ordinary high water mark in response to legislation and to update provisions related to variances and conditional use permits in response to other regulatory changes (WAC 173-14);

1991 to incorporate ocean use guidelines in response to legislation.

A local government must submit a proposed shoreline master program (SMP) or amendment to Ecology for review and approval. The primary review criteria used by Ecology is "the consistency of the proposal with the policy of RCW 90.58.020 and the applicable guidelines."

2. 1995 Legislation

The SMA was amended in 1995 by ESHB 1724 to authorize the Ecology to periodically – at least once every 5 years, but not more frequently than once each year – review and adopt guidelines for the development of SMPs. RCW 90.58.080 was also amended by ESHB 1724 to require local governments to amend or adopt SMPs within 24 months after Ecology adopted the new guidelines. ESHB 1724 also included amendments to the GMA and the SMA that made it easier for local governments to amend their SMPs by eliminating the requirement that Ecology approve any local government SMP amendments through the rulemaking process. These 1995 amendments also took the initial step to integrate the GMA with the SMA by adding the goals and policies of the SMA as one of the GMA goals and the local SMP policies and goals as an element of the comprehensive plan and by allowing the Growth Management Hearings Boards (GMHBs) to hear appeals of Ecology’s approval of SMPs for GMA jurisdictions.

B. shoreline substantial development permits

1. Shoreline Permit Process and Appeals

Shoreline permits are required for shoreline substantial developments and are issued by local governments. A shoreline substantial development permit (SDP) must be filed with Ecology and may be appealed to the Shoreline Hearings Board (SHB). If a SMP requires a conditional use permit or a variance for a particular type of development, that shoreline permit must be submitted to Ecology for its approval. The SMA does not require a public hearing or an appeal at the local level before a SDP is approved, although many local governments do provide for such hearings and appeals. The local government shoreline permit decision is subject to the 120 day permit timeline in RCW 36.70B.090.

The local government must file with Ecology and the Attorney General copies of all of its decisions to approve or deny shoreline permits (including the application, the decision, and all related environmental documents). Ecology must notify the local government in writing of the date the decision was received by Ecology (the "date of filing"). All permit decisions are appealable to the SHB de novo within 21 days of the date of filing. Since the appeal to the SHB is not part of the local government decision making process, the limitation in chapter 36.70B RCW on a single open record hearing and a single closed record appeal that applies to other local land use permits does not include shoreline permit appeals to the SHB.

An appellant to the SHB is not required to have submitted comments during the local government comment period in order to have standing to appeal to the SHB. Any person aggrieved by the grant or denial of a permit may appeal to the SHB. Ecology and the Attorney General may also appeal a local government permit decision, or they may intervene in an appeal that has already been filed.

2. Other Land Use Permits and Appeals

Most land use permit applications are processed by local governments under chapter RCW 36.70B. Local governments are not generally required to provide either hearings or appeals on a permit at the local level, although many do. RCW 36.70B.090 requires a local government to make its decision on a permit application within 120 days after the application is complete. As part of that process, a notice of application must be provided to members of the public.

Once the local government has made its decision on a permit application, the appeal of the permit is generally governed by chapter 36.70C RCW, the Land Use Petition Act (LUPA). Appeals are heard by superior court and are on the record from the local government. The applicant and any person aggrieved or adversely affected by the decision may file an appeal.

C. Enforcement

[RESERVED]

In its review of the guidelines following passage of ESHB 1724 in 1995, Ecology concluded that the guidelines adequately addressed many of the policies set forth in the SMA, but there were also some important deficiencies.

a. Guidelines Consistency with GMA

At the statutory policy level, the SMA and the GMA are consistent. As a result of the 1995 amendments to the GMA, the local shoreline master program policies are an element of the local comprehensive plan and the shoreline master program regulations are part of the local development regulations. The SMP guidelines have not been amended to take into account either the enactment of the GMA or the passage of ESHB 1724.

The most basic issue is that WAC 173-16 does not acknowledge the policies and requirements of the GMA. The guidelines were written at a time when no state level planning requirements applied. The Guidelines provide no guidance to local government on how to balance the planning goals and policies of the GMA with those of the SMA. They also provide a very limited basis for Ecology to properly consider such interests. This increases the opportunity for conflict between the local government and Ecology and opens appeal opportunities by other interested parties.

The GMA includes provisions requiring all counties and cities to designate and protect critical areas. Critical areas include wetlands, frequently flooded areas, and geologically hazardous areas. These are areas that may also be covered by the SMA. DCTED was given the authority to adopt guidelines for the classification of critical areas. To varying degrees, these minimum guidelines adopted by DCTED address topics of interest in SMA implementation. While there is some consistency in purpose between the GMA minimum guidelines and the SMP guidelines, there are significant overlaps and inconsistencies between the two regulations. For example, both provide for public participation with requirements that are not consistent.

The GMA and the SMA also use the same terms for some important purposes, but may assign them different meanings. The terms "urban" and "rural" have specific meanings in each statute, but they do not have the same meaning. Both statutes use the word "element" in similar, though different fashion. This can create confusion for local governments trying to comply with both statutes and integrate their planning activities.

Each also statute requires the plan to include specific elements. These provisions are similar in several respects, but they are not identical. The two statutes also provide different treatment for how the plans are to be developed and approved, which makes integration of the planning requirements more difficult to accomplish. Under the SMA, the standards and preferences are established by statute and control both the guidelines adopted by Ecology as well as the plans adopted by the local government. The plan must be approved by Ecology before it takes effect.

The GMA establishes thirteen goals to guide the development and adoption of plans, but they "are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations." In 1997, the Legislature recognized that this required counties and cities to balance "priorities and options for actions." GMA plans are "presumed valid upon adoption" and are subject to review and comment by the state, but not its approval.

b. Guidelines Consistency with SMA Statutory Policy

Since 1972, the SMA, and the way it is implemented, has changed. Statutory changes have been made to definitions and to other provisions. Implementation has evolved substantially in response to changes in other law (such as the GMA) and SHB and court cases, and through day to day experience. The guidelines were written before the first shoreline master program was prepared. As a result, many of the original master programs bear strong resemblance to the guidelines. In those few communities that have written new master programs, new approaches to SMP organization been taken which appear to provide more effective management.

Since the enactment of the SMA, the legislature has added two new elements that must be included in shoreline master programs. In 1991, as a part of flood related legislation, a provision was added requiring a flood prevention element. In 1992, master programs were required to incorporate shoreline erosion protection requirements.

c. Shorelines of Statewide Significance

The SMA designates certain shorelines as being of greater importance from a statewide perspective than others. Shorelines of statewide significance (SSWS) generally include the marine waters, some of the tidelands and uplands adjacent to the marine waters, and the larger lakes and streams and the lands adjacent to them. The Legislature declared "that the interest of all of the people shall be paramount in the management of shorelines of state-wide significance." Ecology is required to include specific use preferences in the guidelines governing SSWS. Although local governments include SSWS in their master programs, Ecology must assure that the SMP provides for "optimum implementation of the policy of this chapter to satisfy the statewide interest." Ecology’s decision to approve, reject or modify a shoreline master program or amendment involving a SSWS is given greater weight than its decisions relating to other shorelines.

Ecology believes the guidelines do not adequately recognize this distinction between SSWS and other shorelines. The guidelines establish an overlay provision with general criteria applicable only to a SSWS. Ecology has found it difficult to determine whether a master program provides for optimum implementation of the SMA. IT has also found that local governments frequently overlook the SSWS provisions when issuing shoreline permits.

d. Relationship with Other Statutes

The Hydraulics Code, Aquatic Lands Act, and Forest Practices Act apply to some of the areas also within SMA jurisdiction. These laws or their implementing regulations have changed over the years. The SMP guidelines address forest management practices but do not reference the FPA and are not fully consistent with current practice. Various provisions of the guidelines interact with the Hydraulics Code and the Aquatic Land Act and are not fully consistent with requirements of those statutes or their implementing regulations.

The land and water areas within the jurisdiction of the SMA are also the subject of other regulatory programs at the local, state and federal level. The following is not a complete list:

Local:

Zoning

Subdivision

Critical Areas

Flood Plain

Clearing and Grading.

State:

Hydraulics Code

Forest Practices Act

Surface Mining

Water Pollution Control Act

Water Code

Federal:

Clean Water Act

Rivers and Harbors Act

Endangered Species Act.

While all of these statutes have common interests with the SMA, none of them are intended to address the specific policy interests of the SMA in a comprehensive manner.

Critical area regulations and local SMPs address common geography and subject matter. All of the types of critical areas occur within SMA jurisdiction and two (shellfish beds and kelp and eelgrass areas) occur only within SMA jurisdiction.

In practice, in some jurisdictions, as applied to some sites and in some circumstances, adopted critical area regulations are duplicative of shoreline regulations. In other jurisdictions, adopted critical area regulations are insufficient to comply with the policy of the SMA. In yet other jurisdictions, adopted critical area regulations exceed the policy requirements of the SMA. Local governments have taken a variety of approaches to coordination between the two regulations including co-applicability, exclusive applicability and, in a few cases, have relied on the SMP as the critical area regulation.

e. Attention to Regional Differences

The 1972 Guidelines were written from a Puget Sound/Western Washington perspective. They do not recognize the unique cultural, physical and biological character of eastern Washington and provide little useful guidance for management of eastern Washington rivers and lakes. This results in further alienation of residents and poor implementation of the SMA in eastern Washington.

f. Changes in Scientific Knowledge

Much has been learned about the physical and biological character of Washington’s shorelines since 1972. In recent years a number of studies have been conducted on near shore ecology, shoreline morphology, and the needs of wild salmonids. Some of these studies have suggest that the cumulative impacts of shoreline modifications have had an adverse impact on the productive capacity of the state’s waters.

The 1972 Guidelines were based on science dating from the 60’s that identified the adverse impacts of dumping, dredging, filling, channelizing, etc. These types of activities were the often taken as part of large-scale projects with far-reaching and visible impacts.

The SMA establishes a policy that natural shorelines "shall be preserved to the greatest extent feasible consistent with the overall best interest of the state." The SMA also states that it "is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses." It gives preferences to uses that are consistent with the control of pollution or prevention of damage to the environment, "or are unique to or dependent upon use of the state’s shorelines." Priority for changes to the natural shorelines is to be given to single family residences, ports, recreational uses, industrial and commercial development dependent on the shorelines, and developments that will provide an opportunity for substantial numbers of people to enjoy the shorelines.

The policy of the SMA is also to protect against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incident thereto. There is some evidence to indicate that shoreline resources are now more often adversely affected by the cumulative impact of these many small scale and dispersed projects on the shoreline. As shorelines are developed, native vegetation is often removed and the physical character of the shoreline is changed. The wildlife that is dependent on those physical and biological characteristics may be displaced.

Ecology and many in the environmental community believe that the tension between these policies – the policy for allowing use of the shorelines and the policy to protect against adverse effects – is not adequately addressed by the current guidelines.

Many in the business community emphasize the shoreline act’s recognition on "management" of the shorelines, not just its protection. They express a concern that changes to the guidelines must include a recognition of the need to encourage shoreline dependent uses.

g. Changes in Types of Shoreline Uses

The 1972 Guidelines were oriented toward management of typical shoreline uses of the time. Resource based industries dominated the industrial waterfront. International trade was limited and tied to the resource industries. Vacation homes were scattered along the shoreline. The way shorelines are used has changed dramatically since the 1970s. International trade, recreation and multiple use developments now dominate the urban waterfront. Residential uses have expanded and changed in character. More shoreline residences are now full time residences. Redevelopment of residential sites is common, with larger homes replacing smaller cabins.

Issues such as brownfields redevelopment, sediment contamination clean-up, habitat restoration, mitigation banking, and dredged material management have emerged and require a flexible approach. While the intent behind such activities is clearly consistent with the overall intent of the SMA, the guidelines, and the existing master programs, have often been an impediment to such projects because the guidelines do not address them.

h. Shoreline Master Program Updates

Although they have not been required to do so, some local governments have updated their SMPs over the years There are also a number of jurisdictions that have not amended their SMPs since they were initially adopted in the 1970s. In some cases local governments may be reluctant to spend the considerable resources necessary to review or amend their SMPs because they have little shoreline development and the SMP approval process was extremely complex. In other cases, local governments may have used their planning resources to comply with the GMA.

Ecology and many environmental groups believe that this failure to update SMPs during the past 25 years has resulted in the approval by local governments of shoreline permits for some projects that should have been modified or conditioned to better protect the environment and also has caused citizens and Ecology to appeal a number of these projects to the Shorelines Hearings Board (SHB).

In 1996, based upon the 1995 amendments to RCW 90.58.060 and 90.58.080, Ecology proposed new guidelines that raised significant concerns from representatives of local governments and the business community. They were concerned that the broad scope of the proposed new guidelines would require all local governments to completely rewrite their SMPs at considerable expense, even those local governments that had been periodically updating their SMPs and receiving Ecology approval.

Local governments planning under the GMA were concerned that they after having spent considerable time and resources on GMA compliance, they would have to spend additional time and resources to review and update of their SMPs in two years. Some argue that their critical areas regulations, comprehensive plans, zoning ordinances, drainage codes, and other development regulations adopted under the GMA include sufficient shoreline protections. They believe that they should be able to use their previously adopted GMA plans and regulations to satisfy the requirement to update their SMPs. They note that Section 1 of ESHB 1724 provides that GMA is the fundamental building block of regulatory reform and argue that they should be able to fully integrate their shoreline policies and regulations into their existing GMA plans and development regulations.

Local governments are also concerned that the failure to complete this process within the 24 month time period could result in appeals to a GMHB and potentially a finding that their existing SMPs are "invalid."

Some local government and business community representatives also have substantive concerns about the Ecology’s proposed 1996 guidelines. They believe that the focus of the draft guidelines would have converted the Shoreline Management Act from legislation that includes preferences for shoreline dependent uses – including industrial and commercial uses – to legislation that would have required the shorelines to be preserved primarily for public access, recreation, fisheries, and aquaculture.

There have been proposals to eliminate Ecology’s authority to adopt new guidelines, or to require the guidelines to be submitted to the Legislature for review, and suggestions that adoption of the guidelines be assigned to Department of Community Trade and Economic Development (DCTED) or to a Shoreline Commission with broad statewide representation.

Ecology and the environmental community are concerned that the current guidelines do not adequately meet the policies of the SMA and that Ecology’s guidelines need to include additional environmental protection measures to address the deficiencies. They believe that statewide concerns can be addressed through public participation in the normal rulemaking process and that regional differences can be addressed by adopting performance standards rather than uniform statewide requirements.

B. Shoreline Master Program Adoption and Amendment Process

1. impacts of existing guidelines on permit processing

RCW 90.58.140 requires that a shoreline permit may only be issued when it is consistent with the approved local master program and the SMA. The guidelines form the basis for approval of master programs and are only directly applicable to permits in very limited circumstances.

The effect of maintaining the existing guidelines has a secondary effect. Approximately 50 % of the master programs statewide have never been amended; over 80% have not had any significant amendments. These programs frequently reflect the deficiencies discussed above. Under the SMA, a substantial development permit must not only be consistent with a local government’s SMP, but it must also be consistent with the policy of the SMA. If a SMP does not adequately address the policies of the SMA, a permit may be subject to challenge. At a minimum, this presents uncertainty for a project applicant, particularly one who proposes a type of project not contemplated at the time the SMP was adopted.

A project proponent who seeks approval for a project using innovative approaches to environmentally sound development may also find the master program more of a hindrance than an assistance, because the innovative approaches were not contemplated at the time the SMP was adopted. One potential impact of this is it may be easier to obtain approval of a proposal that has greater adverse impacts than one that is more benign.

2. Shoreline Master Program Adoption Process

Because of the similarities between the requirements of the GMA and the SMA, and because of the legislative intent that GMA become the foundation for regulatory reform, both business and some local governments argue that the shoreline element of a GMA comprehensive plan should be subject to the same adoption process as are other elements of the GMA. They argue that the GMA requires substantial public participation and that Ecology oversight is still provided by Ecology guidelines and the requirement that local governments submit all proposed GMA plans and development regulations to DCTED 60 days prior to final adoption. They argue that approval of SMPs by Ecology is inconsistent with the process for all other GMA plans and regulations and is no longer necessary.

Others believe that the original SMP adoption process, which required Ecology approval and allowed appeals by local governments to the Shorelines Hearings Board, worked well and should be used for this round of SMP updates They argue that the GMA process has been extremely costly for many local governments to comply with because DCTED does not approve plans and development regulations. As a result, costly appeals to the GMHBs have been the only process available to ensure compliance with the GMA. Although it took a great deal of time in the 1970s for some local governments to complete the initial adoption of their SMPs, there were few appeals to the Shorelines Hearings Board – perhaps because Ecology had approved all SMPs – and no problems with invalidity or the need for moratoria while Ecology approval was pending because the SMA includes language that requires all permits to comply with the policy of the SMA and the Ecology guidelines.

The argument in favor of retaining the existing Ecology approval process is based on the fact that the people of the state have recognized through the enactment of the SMA by initiative that the shorelines are "among the most valuable and fragile of [the state’s] natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation." This strong statement of state interest differs from the interest the Legislature has expressed in the GMA. The Ecology approval process is believed to be a critical part of the process to assure that the state’s interest as expressed in the SMA is protected.

C. Shoreline Permit Process

1. Exemptions From the Shoreline Permit Requirements

Some types of development are not considered "substantial development" and are exempt from the shoreline permit process, including, for example, "normal protective bulkheads common to single family residences" and owner occupied single family homes less than 35 feet in height. Exemption from the shoreline permit requirement does not eliminate the need to be consistent with the policy of the Shoreline Management Act and the applicable guidelines or SMP. Exemption also does not affect the local government’s ability to adopt other development regulations governing the issuance of building permits for these types of projects. Although some local governments have adopted development regulations governing setbacks from the shorelines and requiring other types of environmental protection, many others have not.

Ecology and some environmental groups believe that uniform state guidelines are needed for some types of exempt projects to ensure protection and enhancement of the natural shoreline. Some local government and business community representatives are concerned that a single set of regulations applicable statewide will not reflect local variations. They argue that all shorelines are not alike and that "one size does not fit all." They also point out that many of the exemptions were included in the original SMA legislation that was adopted by a vote of the people and that there is strong public support for these exemptions.

2. Comment Period and Public Notice Requirement

A thirty day public notice and comment period is required for all types of shoreline permit applications. The notice requirement was amended in 1995 by ESHB 1724 to eliminate the requirement that the notice of application be published at least once a week on the same day of the week for two consecutive weeks in a legal newspaper of general circulation because it was agreed at that time that the other three remaining methods of giving notice were sufficient and because local governments often made mistakes publishing notice twice for shoreline permits because this was a different process than their notice procedures for their other land use permits. The remaining notice requirements for shoreline permits are similar to the SEPA notice requirements, but the comment period may not be the same as for other land use permits because RCW 36.70B.110(2)(e) allows a comment period "not less than fourteen nor more than thirty days following the date of notice of application." Some environmental groups and community representatives are concerned that the existing public notice requirements are not adequate and believe that more types of public notice for shoreline permit applications is needed.

3. Ecology Approval of Conditional Uses and Variances

Some local governments and representatives of the business community believe the additional requirement that Ecology must approve all shoreline conditional uses and variances adds extra time to the permit process and is not necessary because Ecology has the right to approve all SMPs and also has the right to appeal all shoreline permits.

4. Filing With Ecology

The local government must file with Ecology and the Attorney General copies of all of its decisions to approve or deny shoreline permits (including the application, the decision, and all related environmental documents). Local governments often make mistakes in the filing process by forgetting to file all necessary papers or waiting a number of days to file everything with Ecology. The appeal period does not begin until all documents are filed with Ecology. This can cause delays and extended appeal periods which can be costly for the applicant. Ecology must notify the local government in writing of the date the decision was received by Ecology (the "date of filing"). This need to let the local government know in writing when the filing was received by Ecology also adds to the time and cost of the process, since every local government filing must be acknowledged in writing by Ecology.

5. Appeals

a. De Novo Appeals to the Shorelines Hearings Board

All appeals to the SHB are de novo, even if a record exists from a public hearing or appeal at the local level. The SHB also has sole jurisdiction over SEPA appeals even if the shoreline component of a project is only a minor portion of the site. Some local government representatives and many members of the business community believe that shoreline permits should follow the same permit and appeals process as other local land use permits and should not be appealable to the SHB. They point out that most shoreline projects also require other types of land use and construction permits which are appealable to Superior Court pursuant to LUPA. Many local governments have adopted consolidated permit processes pursuant to RCW Ch. 36.70B and process all required permits concurrently, with a single consolidated hearing and a single consolidated appeal. The requirement that shoreline permit appeals be heard by the SHB results in bifurcated appeals of such projects after the local government makes its decision. They argue that elimination of appeals to the SHB will save time and money for all parties by eliminating duplicate appeal proceedings and the need to file two separate appeals – one in court and one at the SHB.

Other local government representatives and members of the business community believe that appeals to the SHB should be allowed only if there is no open record hearing at the local level. They argue that the SMA requirement for de novo appeals to the SHB was adopted in 1971, six years before legislation was adopted allowing local governments to use hearing examiners to conduct land use hearings. Although de novo appeals to the SHB may have been necessary in 1971, but they are not always necessary now. They point out that many local governments now have local hearing procedures that are duplicated by those required by the SMA. They also believe that the current de novo appeal process discourages public participation by allowing any person or entity with an interest to avoid comment or participation in the local government environmental review and permit process and still file an appeal with the SHB and obtain a de novo hearing.

All sides of this issue agree that any party, including the applicant, may "hold back" information on proposed mitigation during the local government proceedings.

Some local governments that provide for local hearings and appeals on other types of local permits have responded to this situation by eliminating local hearings and appeals on shoreline permits because they want to streamline the process and do not want to require a hearing at the local level that will be repeated in full at the SHB.

The environmental community, Ecology, and other state agencies strongly support the need to retain de novo appeals to the SHB. Ecology and other state agencies are concerned that a requirement that they participate in every permit proceeding will be impossible with the personnel they have available, considering the large number of shoreline permits issued by local governments. They also point out that forcing Ecology or other state agencies to impose conditions on a proposed project before the local government makes its decision may create more conflicts than the current system, because of the sensitivity of local governments that they be allowed to make their own decisions.

The environmental community, Ecology, and other state agencies also argue that the SHB review process is a way to ensure consistency in interpretation of the SMA statewide. They point out that under current law, there is a great deal of variation in how local governments approve shoreline permits and handle local appeal hearings. Some local governments give the local elected officials the final decision making authority. Others use hearing examiners. Some make all permit decisions administratively and provide for no local appeals.

Environmental and citizen groups also argue that some local procedures make public participation easy to understand, but others do not. They also believe that local governments do not always do a good job of protecting their shoreline environments and that SHB appeals, or the possibility of an SHB appeal, has been an effective tool to obtain important environmental mitigation or to stop a project that should not be approved.

b. Time To Complete the Appeal Process

The Shorelines Hearing Board has 180 days from the date an appeal is filed to render its decision. This time limit was added in 1995 by ESHB 1724. Prior to that date, the SHB had often taken a year or longer to make a decision on a shoreline permit appeal. There is still a substantial concern on the part of local governments and the business community that 180 days is still too long and adds substantial additional costs to a project.

c. Expiration of Permits

Construction under a SDP must begin within 2 years and must be completed within 5 years after the permit is issued and appeals are concluded, unless other permits are needed. A single one year extension of each deadline may be approved by the local government. Many members of the business community believe that there is no need to limit the number of additional extensions of these time limits if the project is still in compliance with the shoreline master program. They see no need to require a permit applicant to file a new shoreline permit application and go through the entire process if there has been no change in the SMA requirements that apply to the project.

d. Automatic Stay When An Appeal Is Filed

If an appeal to the granting of a permit is filed with the SHB, construction cannot begin until the permit approval has been upheld by the Shorelines Hearing Board. If the Board’s approval is appealed to court, construction must be further delayed until the Board’s decision is upheld by the Superior Court. The SMA was amended in 1995 to allow construction to commence if a permit appeal had been unsuccessful both at the SHB and in Superior Court. Prior to the 1995 amendments, permit applicants were not allowed to proceed with the project until all appeals had been successfully resolved. There is still substantial concern on the part of the business community that the construction delay is still too onerous on project applicants and that they should be allowed to proceed at their own risk with construction under an approved permit unless opponents obtain a stay in Superior Court. The opposing argument is that the harm to the shoreline of an inappropriate project is likely to be irreversible and should not be allowed until all appeals are resolved.

D. ENforcement

[RESERVED]

Ecology has the authority under RCW 90.58.060 to adopt new guidelines for Shoreline Master Programs and to revise the guidelines annually. The guidelines can be appealed to the Shorelines Hearing Board. Local governments must amend or adopt Shoreline Master Programs within 24 months after Ecology adopts the new guidelines. Shoreline Master Programs must be maintained as separate documents and must include elements that may duplicate GMA comprehensive plan elements. Integration of the SMP into a GMA comprehensive plan and development regulations is difficult and may not be entirely successful. Ecology must approve all Shoreline Master Programs and all amendments. Ecology’s decisions are appealable to the Growth Management Hearing Boards for GMA jurisdictions and to the Shorelines Hearings Board for non-GMA jurisdiction.

Although there may be some difficulties with the current process, the SMA has served the state well for the last 25 years. There is considerable flexibility to allow local governments to meet the requirements of both the GMA and the SMA

There is significant risk in opening the SMA up for significant amendment. There is a potential that important policies included in the act might be lost.

Local governments trying to comply with both the SMA and the GMA have been faced with a number of ambiguities that make it difficult for them to accomplish the objectives of both statutes.

Improving the manner in which the GMA and the SMA work together can result in better compliance with the policies of both statutes.

It may be politically difficult for Ecology to amend the guidelines without some of the procedural changes local governments and business interests are seeking. The legislature might be persuaded to take away Ecology’s authority.

B. Option 2 – Limited Changes

(a) Give local governments more time to amend their Shoreline Master Programs after Ecology adopts new guidelines.

(b) Eliminate Ecology’s authority to adopt additional new guidelines annually or limit this authority to not more than once every 5 years.

(c) Retain Ecology’s authority to adopt new guidelines but require Ecology to submit any new guidelines to the Legislature on or before December 1 and delay the effective date of the new guidelines until after the end of the legislative session in the following year, similar to the Building Code Council process for adopting or amending the State Building Code.

(d) Allow GMA jurisdictions to integrate their Shoreline Master Program policies and regulations into the elements of their comprehensive plans and into their development regulations and provide a process for Ecology review and approval of the integrated components.

(e) Provide that the Growth Management Hearing Boards do not have the authority to "invalidate" existing Shoreline Master Programs.

(f) Provide that local governments need only amend their Shoreline Master Programs to be consistent with new guidelines, and need not readopt their entire Shoreline Master Programs, or subject existing Shoreline Master Programs or adopted GMA comprehensive plans or development regulations to new appeals.

Allows better integration of SMA and GMA planning with more efficient use of both state and local resources.

With appropriate process, Ecology will be more likely to be able to update guidelines.

Without careful oversight, it will be difficult for either the public or Ecology to know when a shoreline master program has been changed and should be submitted for review.

1. Option 3 – Joint Guidelines

Revise Ecology’s authority to adopt new guidelines for shoreline master programs for GMA jurisdictions, and instead require any criteria for GMA plans and regulations affecting shorelines to be developed jointly by the Ecology and DCTED and adopted as procedural criteria by DCTED.

Likely to result in better integration of SMA and GMA.

May make the rule adoption process even more cumbersome than it already is.

Moves responsibility for developing shoreline guidelines from the agency with the greatest expertise.

2. Option 4 – Shoreline Commission

Revise the Ecology’s authority to adopt new guidelines for shoreline master programs by authorizing a new Shoreline Commission consisting of representatives of the Department of Ecology and DCTED, local government (county and city) representatives from large and small jurisdictions through out the state, and citizens representing different interest groups to jointly develop and adopt new "performance based" guidelines. The Commission would terminate once the guidelines were adopted.

[One variation on this proposal would make the Commission advisory to Ecology and authorize the Commission to propose the new guidelines prior to December 1, 1998, but delay the adoption and effective date until after the 1999 legislative session (see Option 2(c)). Another variation on this proposal would include legislators on the Commission and would specify how many of the other Commission members must come from eastern Washington and from smaller jurisdictions. A third variation on this proposal would authorize the Commission to adopt model Shoreline Master Programs (with optional provisions) that could be adopted by local governments.]

Assures support from wide variety of interests and acceptance of proposed changes.

Assures that concerns of the many different participants in the shoreline arena are taken into consideration in the development of new guidelines

A more cumbersome process to manage than standard rule-making procedures.

More expensive because of need to cover expenses of the commission.

If commission is unable to reach agreement, may make it difficult for Ecology to proceed to rule-making.

3. Option 5 – GMA Process

Revise the Shoreline Master Program adoption and amendment process for GMA jurisdictions to be the same as the GMA process for adoption and amendment of comprehensive plans and development regulations. Ecology adoption of new guidelines would remain but Ecology approval of Shoreline Master Programs would no longer be required for GMA jurisdictions. Retain the requirement for Ecology approval of Shoreline Master Program adoption and amendments for non-GMA jurisdictions.

Makes the SMA and the GMA consistent in their development of state policy.

Increased potential for loss of shorelines, since it will be more difficult for the state to address matters of statewide interest as expressed in the SMA.

4. Option 6 – Return to Pre-1995 Shoreline Master Program Approval Process

Retain Ecology approval of SMPs and repeal the 1995 amendments to RCW 90.58.190 that allowed the Growth Management Hearings Boards (GMHBs) to hear appeals of Ecology’s approval of SMPs for GMA jurisdictions. The Shorelines Hearings Board would hear appeals by local governments of all updated SMPs.

Although well-intentioned, giving the GMHBs jurisdiction over SMA appeals has resulted in two different sets of standards in how shoreline master programs are treated. Keeping all appeals in one board will assure consistency of interpretation throughout the state.

Allow all planning issues, both under the SMA and the GMA, to be handled in one appeal proceeding allows a more efficient review process and is likely to result in plans that are internally consistent.

C. permit and appeal process

1. Option 1 – No Changes

Shoreline permits would continue to be required for all shoreline substantial developments. Ecology approval would be required for any shoreline conditional use or a variance. The thirty day public notice and comment period would be retained. No local public hearing would be required. The local government would continue to file with Ecology copies of all of its decisions to approve or deny shoreline permits and Ecology would notify the local government in writing of the date the decision was received by Ecology.

All permit decisions would continue to be appealable de novo to the Shorelines Hearings Board within 21 days of the date of filing. The Shorelines Hearing Board would continue to have 180 days from the date an appeal is filed to render its decision. If an appeal was filed, construction could not begin until the permit approval had been upheld by the Shorelines Hearing Board and, if the Board’s approval was appealed to court, construction must be further delayed until the Board’s decision is upheld by the Superior Court.

The current procedure is relatively efficient.

Appeals to the SHB allow a place for citizens who are not represented by counsel to have their say.

Many local governments do not have adequate procedures to assure an opportunity for all parties to be heard and to present evidence.

Many local permit processes are easily susceptible to political pressure leading to decisions that are not consistent with the goals and policies of the SMA.

The current procedure forces often results in parallel appeal proceedings in two different bodies.

The de novo review proceeding allow a party to withhold information or evidence and gain an advantage at a later point in the process.

The current procedure is easily used to extract unfair conditions from a project proponent in order to obtain a permit.

Many local governments have procedures in place that provide for fair hearings and limit political influence in the decision making process.

2. Option 2 – Limited Changes

(a) Eliminate the requirement for Ecology approval of shoreline conditional uses and variances.

(b) Allow GMA jurisdictions to make the notice and comment period for shoreline permits the same as for other development permits under RCW Ch. 36.70B.

(c) Simplify the requirements that local governments "file" permit decisions with Ecology and that Ecology notify local governments in writing of the date of filing by allowing electronic notice to be given and received by the local government and Ecology on the same day, without the need to transmit all related documents at the same time.

(d) Allow construction to commence after 21 days, unless an appeal is filed and a stay is granted.

(e) Allow more than a single one-year extension of the time for commencing construction or completing construction.

(f) Shorten the time for the Shorelines Hearings Board to render a decision on shoreline appeals.

Continues Ecology’s role in the permit process, but addresses some of the timing issues.

Allows better integration of the shoreline permit process with other land use permits.

Eliminates unnecessary delays in the process.

Ecology approval of conditional use and variances is an important part of the process of assuring that SMA policies are complied with.

Damage to the shorelines by inappropriate development activity often cannot be undone. Allowing construction to begin before all appeals are final may result in further significant harm to the shoreline environment.

The SHB process is already relatively swift. Shortening the time much further will result in the inability of the public to participate in the process.

3. Option 3 – Statewide Permits

Allow Ecology to adopt standards for statewide permits. Certain types of common development could be authorized without the need to obtain a separate shoreline permit. Developments that cannot meet these standards could still be authorized through the normal shoreline permit process. [Variation: convert some exempt activities into developments with statewide permits. This would allow Ecology to set uniform standards and might eliminate the wide variety of conditions imposed on some exempt activities.]

Allows relatively routine projects with known impacts to be handled expeditiously.

Simplifies the permitting and appeal process.

Allows for consistent standards and a way to deal with cumulative impacts.

There may not be that many activities that will benefit from this type of permit.

Does not address the problems with the shoreline permit process generally.

If permit requirements are too onerous, not likely to be used.

4. Option 4 - Only One Open Record Hearing

Allow only a single open record hearing on a Shoreline permit. If the local government provides an open record pre-decision hearing or an open record appeal hearing, any further appeal would be to Superior Court, pursuant to LUPA. If no local open record hearing is provided, then a Shoreline permit could be appealed to the Shoreline Hearings Board. [Variations on this Proposal include: allowing appeals to the SHB to continue, but to be "on the record" if the local government provides for an open record hearing; allowing only Ecology to continue to appeal to the SHB "de novo;" giving Ecology a limited time to comment after a permit is approved and then allowing only Ecology to appeal to the SHB and only if substantive comments are made during this period; allowing appeals to the SHB to continue for projects located in non GMA jurisdictions, or outside UGAs in GMA jurisdictions.]

Requiring a second evidentiary hearing is unnecessary if a local government has already provided for the hearing as part of its review process.

Provides for consistency of all permit procedures at the local level.

Reduces the time and effort expended by the local government, the project applicant, and other parties to the appeal.

Allows local governments that do not wish to provide for a full evidentiary hearing to retain the existing process.

The SHB review process is an important way to assure that the state’s interest in management of the shorelines is dealt with appropriately.

State agencies do not have the resources to appear in every local government proceeding on every permit.

5. Option 5 – All Appeals of Shoreline Permit Decisions to Superior Court

All shoreline permit appeals in GMA and non-GMA jurisdictions would be consolidated with all other permit appeals for the project and could be appealed only to Superior Court pursuant to LUPA. [One variation on this Proposal would require the effective date of this change to be delayed for 24 months or until a local government had updated its Shoreline Master Program, whichever date is later. Another variation on this Proposal would limit LUPA appeals to statewide permits (See Proposal # 3 above), or to shoreline permits within UGAs.]

Will result in a fully integrated SMA and GMA planning process.

Eliminates duplication of processes and will result in more timely decisions.

Relies on experience of superior court judges.

One important function of the SHB is to assure consistency of shoreline management throughout the state. This will be lost if individual superior courts handle all appeals.

Many superior court judges do not have technical expertise in shoreline issues.

Superior courts are more subject to local political interests, to the potential detriment of the broader public’s interest.