1. SMP New Grantees Coordination Meeting April 20, 2006 Tom Clingman, Ecology SEA HQ 1.SMA Rule Update 2.Anacortes case 3.SMP Funding and Schedule

2. Topic 1: SMA Rule Revisions “Jurisdiction”: Old WAC and new SMPs 173-18-050 Adams County. Streams Stream Name Quadrangle Name and SizeLegal Description (1)Cow Creek* Karakul Hills* 7 ½ Marengo 7 1/2 Benge 15 Ritzville S.E. 7 1/2 From mouth of Lugenbeal Creek (Sec.15, T19N, R37E) downstream thru Hallin and Cow lakes, thru Finnel Lake to mouth on Palouse River (Sec.27, T15N, R37E). This stream has a 300 square mile drainage area ending at mouth of Lugenbeal Creek. (2)Palouse River* La Crosse 15 Benge 15 Starbuck 15 From Whitman County line (Sec.24, T16N, R38E) along county line downstream to Franklin County line (Sec.5, T15N, R37E), right shore only. This stream has over 300 sq. miles of drainage area. (3)Rock Creek* Revera 7 1/2From Whitman County line (Sec.12, T18N, R38E) downstream back to Whitman County line (Sec.24 & 25, same township). This stream has over 300 square miles of drainage area. [Order 73-14, § 173-18-050, filed 8/27/73; Order DE 72-13, § 173-18-050, filed 6/30/72.] Original Ecology WACs adopted in 1970’s by County for Streams, Lakes and Wetlands. Virtually no update in 30+ years. (5 year updates intended but not achieved.) New SMP updates: New SMPs will have more complete (ex. missed lakes) and more accurate Shoreline descriptions. Ecology realized this was: 1.) Opportunity to have better information; and 2.) Source of potential legal conflict re: new SMPs vs. old WAC.

3. “Local Options” on SMA Jurisdiction: Floodplains & Buffers SMA amendments have created two local options regarding “Shorelines of the State” jurisdiction: 1. Floodplains. Can extend SMA coverage to include all or part of the 100-year floodplain, beyond the minimum floodway plus 200’. 2. Critical area buffers. Can extend Shoreline jurisdiction to include buffers necessary to protect critical area values and functions (Added in 2003.) Ecology viewpoint: SMP updates are the appropriate venue for 1.) Local governments to make these decisions and 2.) Formal approval by Ecology.

4. Proposed Rule revision: Use ECY-approved updated SMPs for official SMA “jurisdiction” Proposed WAC revision to 173-18, 20 and 22: After approval by Ecology, new SMPs will provide the official designation of Shoreline “jurisdiction” for streams, lakes and wetlands in each county or city. Will occur over next 8+ years, as SMPs are updated. WAC 173-18-044 Review and update of designations. Strike: “The department shall review all the designations made herein at least once in every five-year period following the effective date of chapter 90.58 RCW “… Replace with: Each local government master program shall include a list of streams constituting shorelines of the state within the jurisdiction of the master program that complies with the requirements of RCW 90.58.030(2)(d). When such master program is approved by the Department subsequent to the effective date of this provision, the list within the master program shall be the official list for that jurisdiction and shall supercede the list contained herein.

5. SMA Rule Proposed Revisions Corrections for court and SHB cases 1.Criteria vs. formal designation: Thomas Lake (SHB 98-29) found that three+ years was an excessive period to accomplish formal recognition of a “new” Shoreline of the State. Revision to 173-18, 20 and 22 is proposed to ensure consistency with ruling. WAC 173-18-046 Conflicts between designations and criteria. In the event that any of the designations set forth in this chapter or a Shoreline Master Program approved under WAC 173-20-044, conflict with the criteria set forth in RCW 90.58.030(2) or in WAC 173-18-040 the criteria shall control. The designation of the stream or river shall be governed by the criteria, except that the local government must amend the local master program to reflect the new designation within 3 years of the discovery of the discrepancy.173-18-040

6. SMA Rule Proposed Revisions Corrections for court and SHB cases (con’t) 2. “Floodway” definition: The WAC reference to “flood regulation ordinance maps” was found invalid in the Samuel’s Furniture case (Court of Appeals No. 46666-6-1.) Propose striking this last sentence (below). WAC 173-22-030 Definitions. (5) "Floodway" means those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with 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 vegetative ground cover condition. 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. The limit of the floodway is that which has been established in flood regulation ordinance maps or by a reasonable method which meets the objectives of the act;

7. SMA Rule Proposed Revisions Corrections for court and SHB cases (con’t) 3. Date of Filing: The WAC was found to exceed statutory language by the H and H Partnership case (Pierce County Superior Court # 01-2-09493-4). Revision is proposed to use the same text as 90.58.140(6). 173-27-120 (6) "Date of filing“ (summary): For SDPs: “’Date of filing’ means the date of actual receipt by the department.” For variance or a conditional use: “’Date of filing’ means the date a decision of the department rendered on the permit is transmitted by the department to the local government. The department shall notify in writing the local government and the applicant of the date of filing.”

8. SMA Rule Proposed Revisions Corrections to incorporate changes to SMA statute 1.SDP Thresholds: Beginning 7/1/07, OFM will post inflation- corrected values on State Register every 5 years. Include reference to updates in WAC. 2.“Exempt” from SDP – Reflect revisions to statute: Navigational aids (drop Coast Guard and Ports reference) Dikes and drains: Grandfather date from 6/4/75 to 9/8/75. Fish passage or habitat projects: 77.55.181 = “Consistency with SMP” 3.Superceding statutes: New section 173-27-045 lists statutes that fully or partially supercede SMA (and often other local codes): Sexual predator housing; “Environmental Excellence” programs; Haz Substance Remedial Actions; RCW 80.50 Certifications. 4.Permit timing provisions (extensions): 173-27-090 revised to reflect statute (90.58.143)

9. SMA Rule Proposed Revisions Corrections to incorporate changes to Federal guidance CZM Consistency: Federal guidance on topic has been revised. Specific provisions in WAC are proposed to be deleted and replaced with reference to approved CZM Program: 173-27-060: “The process for CZMA federal consistency decision-making is described in Washington’s federally approved CZM program document (Ecology Publication 00-06-029).”

10. Topic 2: Anacortes WWGMHB case One part of the Anacortes CAO decision contains very significant legal implications for Ecology and local governments.  The decision: Because the new CAO regulations were to be applicable within Shorelines area, Ecology must formally approve the CAO as an SMP update - before the city can achieve GMA compliance. Decision appears to be broadly applicable.  GMHB found ECY/CTED Guidance (HB 1933) to be in error. (Our position: SMP supercedes CAO only when comprehensive SMP, with equal protection for critical areas, is approved by Ecology.)  FutureWise appealed the Board’s decision. Concerned that local governments will defer updating habitat protection until SMP update – potentially 6+ years delay. FW supports ECY/CTED Guidance.

11. Anacortes continued Ecology and CTED are petitioning to become party to appeal. Reasons: 1.Complying with Anacortes would violate SMP Guidelines. Guidelines require comprehensive update if amendment is a “significant modification to practices” or “affects substantial portion of Shoreline area.” New Critical Area regs clearly exceed this. But CAO will not meet SMP Guidelines requirements for cumulative impact analysis, restoration strategy, etc. 2.Decision contradicts SMP update schedule adopted by Legislature. 3.Significant uncertainty is created for local governments re: GMA compliance if Ecology approval becomes prerequisite. Advice from Ecology and CTED to local governments: Continue CAO and SMP updates as before, as this is the only practical approach.

12. Topic 3: SMP Funding and Schedule Proposals being considered by Ecology: Budget requests being considered Grant funding request increase to $5.5 million/biennium (vs. $4 million) due to costs exceeding original (2002) projections. Would support SMP updates statewide within current schedule. ECY staffing request for technical assistance and SMP review: Potential request for 6 FTE increase. Timeframe for SMP completion by cities and counties: Considering proposed legislation to allow one year extension (parallel with CAO updates) Puget Sound Initiative linkage: Considering potential shift to focus SMP updates on PS counties and marine front cities. Potential Puget Sound target: All SMP updates underway by 2009.