Review of WAC173-26, Shorelines Management Act Revisions

Introduction

One of the most difficult things a new legislator has to learn is how read legalese. Legalese frustrates the ordinary citizen, but unfortunately it is not going away. This paper is my attempt to provide the citizens of Washington with an understandable document that explains the Shorelines Management Act (SMA).

t is a good news - bad news proposition.

The good news is that an understandable document can be created by grouping different sections of the law in a sequence which makes sense.

The bad news is that to do so requires reproducing most of the law. That is a lot of reading. But reproducing the law in italics gives every reader, regardless of viewpoint, the ability to see that my comments are in context with the law adopted by the Legislature in 1971. So, please be patient. It is imperative that informed citizens read and understand the law, if they are to effect changes.

This paper deals with two types of law. The first is the Revised Code of Washington or RCW. The RCWs are laws passed by the Legislature and provide legislative instructions to the various state agencies for how they are to carry out mandated programs. RCWs can only be created or changed by the Legislature or by a vote of the people when they pass a ballot measure. The public hearing process for RCW changes occurs before the Legislature, unless the RCW change is in the form of an initiative or referendum. The second type of law is contained in the Washington Administrative Code or WAC. WACs are rules written by state agencies to guide implementation of an RCW. They must be consistent with the legislative intent of the RCW and can not exceed the authority granted to the agency by the Legislature. Most changes to WAC must undergo a public hearing process before the people of the state.

Legalese is the science of words. It appears the law is tied up in definitions, but there is a good reason for that. Laws mean exactly what they say and there are few words contained in a law that aren't there for a specific reason. At first glance, this may be frustrating for the citizen but do we really want laws that leave the government the choice of what they will do or won't do? Of course not. Laws such as that lead to favoritism and corruption, so great effort is taken to say exactly what is meant. There are three words in law which are extremely important. They are shall, should and may. Shall uses an imperative voice and means the Legislature has determined that an action by an agency must be done. Should means that the Legislature has determined that the particular action by an agency is required, unless there is a compelling reason against doing it. May indicates that the Legislature has given the agency the authority to determine that a particular action is acceptable, as long as it meets the provisions of the law.

As you read through the SMA, be careful to watch for the way in which these three words are used. The letter of the law and how it applies to you depends on how these words are used and who uses them.

RCW 90.58.900 injects another variable into interpretation of the letter of the law. In that section, the Legislature exempted SMA "from the rule of strict construction and said the law shall be liberally construed to give full effect to the objectives and purposes to which it was enacted." This means the Legislature wanted the Department of Ecology (DOE) to make sure the policy was applied and that DOE has a greater discretion to interpret the law than it would under the rule of strict construction. This does not mean DOE can do whatever it wants. They still must stay within the intent of the policy expressed in RCW 90.58.020.

In order for a citizen to change a law they must first understand what the law says and how it affects them. If they are totally unhappy with the law they can try to do away with it or they can try to change it to fit new circumstances.

Sometimes, as in this case, a government agency will try to revise a rule. It may be possible for citizens to stop the revision, but we have to do several things first. We have to know if the Legislature gave the agency the authority to change the law and we have to know if the agency's changes continue to meet the purpose for which the law was enacted. If either of these circumstances are not present, the changes can be challenged because according to our state Constitution only the Legislature can make law. If the agency has the authority to make the change and the change fits legislative intent, we still have an opportunity to make changes through our public processes. If all of this fails and the agency insists on making the change in spite of public opposition, the voters have the ability to elect new representatives who will address the problem.

Successful opposition or support of a piece of legislation requires that specific issues be addressed. For instance, an advocate will get much further by saying, "I believe Section 4 of WAC 173-26-210 effectively ignores the legislative intent to permit planning for and fostering all reasonable and appropriate uses of shorelines" then the advocate will get by saying, "this is an unconstitutional taking of private property." The person may be right, BUT in our system only a court can decide constitutionality.

This is a complicated issue, so please take the time to read about it. This is how I read law in my job as a representative and I hope it is helpful to you.

The Shorelines Management Act

The SMA was approved by the Legislature in 1971 and placed on the ballot in 1972 as Initiative 43B. It was an alternative to an Initiative to the Legislature which became Initiative 43. The people of Washington at the 1972 general election voted to accept Alternative Measure 43B. It became RCW 90.58.

Purpose of this Paper

Early in 1999, DOE released a draft of a revision of WAC173-26, DOE rules for implementing the SMA of 1972. The revision has created a growing public outcry about, what is seen by many as, a huge government invasion of property rights. The purpose of this paper is to examine the original SMA to find out what it was intended to do and how it was intended to work. We can then compare it with the actions called for in the 1999 revision to see if the revision continues to meet the legislative intent expressed in the 1972 law. We must also examine the relationship of the SMA to the Growth Management Act (GMA) because the 1995 Regulatory Reform Bill (ESHB1724) requires DOE to periodically review and adopt guidelines consistent with RCW 90.58.100. This will require an examination of the legislative intent of GMA and Regulatory Reform.

This paper will attempt to look at the SMA, GMA and Reg. Reform relationship within the "four corners of the document" as required by the Washington Supreme Court when examining a piece of legislation. That is "an act must be construed as a whole giving effect to all language used, considering all provisions in relation to each other and, if possible, harmonizing all to insure proper construction of each provision." Newsschwander v. Teacher's Retirement System, 94 Wn.2d 701 (1980); in re Piercy, 101 Wn.2d 490, 492 (1984). The courts have stated that "no part of a statute should be deemed inoperative or superfluous unless it is the result of an obvious mistake or error. This requires every word, clause, and sentence of a statute be given effect if possible." Klein v. Pyrodyne Corporation, 117 Wn.2d 1, 13 (1991). Also, "statutes are not interpreted so as to render any portion meaningless, superfluous, or questionable." Addleman at 509; Wright v Engum, 124 Wn.2d 343, 352 (1994).

Contents of RCW

Although the RCW contains a table of contents for the SMA, the following has been produced showing a more detailed description of the various sections. The SMA contains the following sections:

90.58.010 Short title.
90.58.020 Legislative findings--State policy enunciated--Use preference.
90.58.020(P1) Legislative Intent
90.58.020(P2) Policy Statement
90.58.020(P3) Policy Statement for Shorelines of Statewide Significance
90.58.020(P4) Policy Statement for Shorelines of the State
90.58.030 Definitions and concepts.
90.58.040 Program applicable to shorelines of the state.
90.58.045 Environmental excellence program agreements--Effect on chapter.
90.58.050 Program as cooperative between local government and state--Responsibilities differentiated.
90.58.060 Review and adoption of guidelines--Public hearings, notice of--Amendments.
90.58.070 Local governments to submit letters of intent--Department to act upon failure of local government.
90.58.080 Timetable for local governments to develop or amend master programs.
90.58.090 Approval of master program or segments or amendments thereof, when--Procedure--Departmental alternatives when shorelines of state-wide significance--Later adoption of master program supersedes departmental program.
90.58.090(1) DOE approval/disapproval of new or segments/amendments to existing shoreline plans (master program)
90.58.090(2) DOE master program (new or amendment) review process
90.58.090(5) Local government intent to comply late submittal
90.58.100 Programs as constituting use regulations--Duties when preparing programs and amendments thereto--Program contents.
90.58.100(1) Local government - master programs become use regulations upon approval of DOE
90.58.100(1) Local government - preparation of local government master program
90.58.100(2) Local government - Elements of local government master program
90.58.100(3) Local government - Maps required for local government master program
90.58.100(4) Local government - Portrayal of state owned shorelines in master program
90.58.100(5) Local government - Variances in master program
90.58.100(6) Local government - Single family protection required
90.58.110 Development of program within two or more adjacent local government jurisdictions--Development of program in segments, when.
90.58.110(1) DOE - Notification of adjacent local jurisdiction requirement
90.58.110(2) DOE - Adoption of master program in segments
90.58.120 Adoption of rules, programs, etc., subject to RCW 34.05.310 through 34.05.395--Public hearings, notice of--Public inspection after approval or adoption.
90.58.120(1) Local government - Master program public hearings required
90.58.120(2) Local government - Master program available for public review
90.58.130 Involvement of all persons and entities having interest, means.
90.58.130(1) Local government/DOE - Public involvement
90.58.130(2) Local government/DOE - Federal, state and local government participation
90.58.140 Development permits--Grounds for granting--Administration by local government, conditions--Applications--Notices--Rescission--Approval when permit for variance or conditional use.
90.58.140(1) Development Permits - Development consistent with master program
90.58.140(2) Development Permits - Substantial development
90.58.140(3) Development Permits - Local government administration
90.58.140(4) Development Permits - Public notice
90.58.140(5) Development Permits - Procedure for granting or appealing
90.58.140(6) Development Permits - Rulings filed with AG
90.58.140(7) Development Permits - Burden of proof on applicant
90.58.140(8) Development Permits - Recission of permit for non-compliance
90.58.140(9) Development Permits - Exemption for energy facilities
90.58.140(10) Development Permits - DOE approval of variances/conditional use
90.58.140(11) Development Permits - Emergency, single family and utility
90.58.143 Time requirements--Substantial development permits, variances, conditional use permits.
90.58.147 Substantial development permit--Exemption for projects to improve fish or wildlife habitat or fish passage.
90.58.150 Selective commercial timber cutting, when.
90.58.160 Prohibition against surface drilling for oil or gas, where.
90.58.170 Shorelines hearings board--Established--Members--Chairman--Quorum for decision--Expenses of members.
90.58.175 Rules and regulations.
90.58.180 Appeals from granting, denying, or rescinding permits--Board to act--Local government appeals to board--Grounds for declaring rule, regulation, or guideline invalid--Appeals to court.
90.58.185 Appeals involving single family residences--Composition of board--Rules to expedite appeals.
90.58.190 Appeal of department's decision to adopt or amend a master program.
90.58.190(1) Local government/DOE periodic review/adjustment of master programs
90.58.190(2) Local government - appeals to master programs or amendments under GMA
90.58.190(3) Local government - appeals to master programs or amendments not under GMA
90.58.195 Shoreline master plan review--Local governments with coastal waters or coastal shorelines.
90.58.195(1) DOE - ocean use guidelines
90.58.195(2) Local government - Compliance with ocean use guidelines
90.58.200 Rules and regulations.
90.58.210 Court actions to insure against conflicting uses and to enforce--Civil penalty--Review.
90.58.220 General penalty.
90.58.230 Violators liable for damages resulting from violation--Attorney's fees and costs.
90.58.240 Additional authority granted department and local governments.
90.58.250 Department to cooperate with local governments--Grants for development of master programs.
90.58.260 State to represent its interest before federal agencies, interstate agencies and courts.
90.58.270 Nonapplication to certain structures, docks, developments, etc., placed in navigable waters--Nonapplication to certain rights of action, authority.
90.58.280 Application to all state agencies, counties, public and municipal corporations.
90.58.290 Restrictions as affecting fair market value of property.
90.58.300 Department as regulating state agency--Special authority.
90.58.310 Designation of shorelines of state-wide significance by legislature--Recommendation by director, procedure.
90.58.320 Height limitation respecting permits.
90.58.340 Use policies for land adjacent to shorelines, development of.
90.58.350 Nonapplication to treaty rights.
90.58.355 Hazardous substance remedial actions--Procedural requirements not applicable.
90.58.360 Existing requirements for permits, certificates, etc., not obviated.
90.58.370 Processing of permits or authorizations for emergency water withdrawal and facilities to be expedited.
90.58.380 Adoption of wetland manual.
90.58.515 Watershed restoration projects--Exemption.
90.58.550 Oil or natural gas exploration in marine waters--Definitions--Application for permit--Requirements--Review--Enforcement.
90.58.560 Oil or natural gas exploration--Violations of RCW
90.58.550--Penalty--Appeal.
90.58.570 Consultation before responding to federal coastal zone management certificates.
90.58.600 Conformance with chapter 43.97 RCW required.
90.58.900 Liberal construction--1971 ex.s. c 286.
90.58.910 Severability--1971 ex.s. c 286.
90.58.911 Severability--1983 c 138.
90.58.920 Effective date--1971 ex.s. c 286.

What the Legislature Intended in 1971

SMA General Findings

The SMA deals with two types of shorelines. They are "shorelines of state wide significance" and "shorelines of the state." These definitions describe ONLY the location and length of the two different shorelines. There are four definitions which determine the WIDTH of the area effected by the SMA. It is difficult to understand how the law is applied without understanding these definitions. They are ordinary high water mark, shorelands, flood way and wetlands.

- RCW90.58.030(1)(b) defines ordinary high water mark - "on all lakes, streams, and tidal water is the mark that will be found by examining the bed and banks and ascertaining where the presence and actions of waters are so common and usual, and so long continued in ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the DOE: PROVIDED, that in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark of fresh water shall be the line of mean high water."

- RCW90.58.030(2)(f) defines "Shorelands" or "shoreland areas" as "those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology. Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom;"

- RCW90.58.030(2)(g) defines floodway as "those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which floodwaters are carried during periods of flooding that occur at periods of reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegitative ground cover condition. [HOWEVER] the floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state."

- RCW90.58.030(2)(h) and RCW36.70A.030(20) define wetlands as "areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from non-wetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from non-wetland areas to mitigate the conversion of wetlands." NOTE: In 1995, the Legislature added Section 380 to RCW 90.58 and Section 175 to 36.70A. These sections state, "The department shall adopt a manual for the delineation of wetlands under this chapter that implements and is consistent with the 1987 manual in use on January 1, 1995, by the United States corps of army engineers and the United States environmental protection agency. If the corps of engineers and the environmental protection agency adopt changes or a different manual , the department shall consider those changes and adopt rules implementing those changes."

Section 020 is a type of introduction to the SMA and contains four parts. They are the legislative findings, a general policy statement, and policy statements for two categories of state shorelines.

.......>>>>>>> snipped for space<<<<<<<

Summary These laws clearly show the Legislature has given DOE no authority to require environmental retrofit of vegetation or riparian rehabilitation (salmon recovery projects or stream rehabilitation) as a condition of a shoreline master plan and hence a requirement for a property owner.

I am not a lawyer and cannot give legal advice. My background is in construction contract administration. However, the concept of using exact words in contracts applies very well to understanding law. The purpose of this paper is to examine the original SMA and find out what it was intended to do and how it was intended to work. Along the way, we have examined changes made by the Legislature to SMA and related laws that effect it. This provides an up-to-date context for citizens to make informed decisions about the proposed changes.

I used this paper to compare the current SMA RCW with the proposed rules changes contained in draft 173-26 WAC. On August 4, 1999, I sent a letter to the director of the Department of Ecology documenting 10 separate violations of RCW contained in the draft. I requested that adoption of the draft be deferred until the Legislature can examine the issue. A follow up letter, highlighting additional violations, is being drafted.

Our system is supposed to work in the following manner.

You elect the Legislature. The Legislature enacts laws and fund the actions needed for government. The agencies, part of the executive branch, use the money to enforce the laws. You hold the Legislature accountable for the actions of the agencies.