Developing on state shorelines will get tougher

By SCOTT MISSALL
Short Cressman

The Washington Department of Ecology is proposing extensive and substantial new changes to the guidelines which implement the state Shorelines Management Act. The act was adopted by the state of Washington in 1976 under the Federal Coastal Zone Management Act. Following legislative adoption of the SMA, Ecology adopted regulations generally describing permitted and prohibited uses along the state's shorelines. Those guidelines have remained relatively unchanged until this year's proposal.

There will be substantial new limitations on private residential use of shoreline areas. Photo by Ben Minnick

Ecology's proposed new guidelines add several new and important sections to the existing guidelines.

Thematically, they represent a significant tightening of shoreline development restrictions. This is no doubt driven in part by the recent listing of several salmon species throughout the Puget Sound region as endangered species, and by the Governor's response plan to that listing.

The tools Ecology is using to achieve these added restrictions fall into three basic categories: new or revised definitions of key shoreline concepts, more stringent controls on the contents of local government master programs, and multiple overlays of environmental policies, goals and concepts regulating the implementation of substantive use restrictions.

Key definitions

Ecology is proposing to incorporate many key concepts as new definitions in the guidelines. This is a time-honored method, particularly well established in the environmental field, of ensuring the scope and application of certain concepts even before they are implemented through substantive policies. Some examples of the new definitions include the following:

• Developed shorelines: Shoreline areas that are "characterized by existing uses or permanent structures located within shoreline jurisdiction."

• Ecological functions or natural shoreline functions: "Natural physical and biological processes which contribute to the shoreline ecology." Such processes include geomorphic processes, sediment transport, biological production, litter and debris production, microclimates, vegetation growth, and more.

• Ecologically altered shorelines: "Shorelines that have had their vegetation or shoreline configuration substantially changed in a manner that significantly modifies or reduces the natural shoreline functions."

• Ecologically intact shorelines: "Shoreline areas that retain the majority of their natural shoreline functions and values, as evidenced by vegetation and shoreline configuration." To help explain the meaning of this definition, the guidelines go on to say that "this definition is intended to delineate those shoreline areas that provide valuable functions for the larger shoreline ecosystem which would be lost by significant human development.... The term ecologically intact shorelines applies to all shoreline areas meeting the criteria ranging from larger reaches [which] may include several properties to small areas located within a single property."

The guidelines also draw additional distinctions between old concepts, such as uses that are "water-dependent", "water-enjoyment", "water-oriented" and "water-related." The specificity of these new definitions, and the extensive comments describing their intent, leaves little room for interpretations that are inconsistent with the policies and goals of the new guidelines.

By taking this approach, when these definitions are used later in the procedural and substantive regulations, they have already delineated the intent and scope of the intended application.

Local master programs

The second tool used by the guidelines is an extensive new set of regulations governing local shoreline master programs. In short, Ecology has greatly reduced the flexibility of local jurisdictions to respond to local concerns.

Local governments are given no authority to change requirements set forth in the guidelines because every master programs must be consistent with the guidelines.

Overlapping policies

The third tool is an array of overlapping policies, goals and "concepts" which must be implemented in every local master program. Through this tool, Ecology can effectively define the overriding policy and intent of every local master program, and so insure that there will be no deviation from the guidelines. Three examples of this tool are:

Master program contents. This section requires that local master programs comply with the guidelines, utilize its concepts and policies, specify permissible environmental designations, and more.

Overall, there is little language that actually promotes development on the shorelines (even when it is "water-dependant") or even benign. Rather, there is a grudging acceptance that some development must be allowed to occur, but even then it is almost universally required to be the "minimum necessary" and must enhance existing shoreline qualities and restore shoreline functions.

Unified local planning concepts. This section requires that every local master program is required to use the basic definitions and principles of the guidelines.

Environment designation system. This section reiterates the four permitted shoreline designations and compels that they be used absent "compelling reason to the contrary." These designations are fundamentally directed at limiting shoreline development except in the urban environment.

As a result of the new and expanded policies in the guidelines, Washington residents and shoreline property owners should expect at least the following minimum effects:

A net long-term gain in the quality and quantity of shoreline habitat through protection (i.e., non-development) of existing undeveloped resources, enhancement of existing developed or undeveloped habitat resources, and restoration of developed shoreline resources.

Substantially diminished likelihood of any future significant shoreline development. This is true even in urban environments, and even for water-dependant uses.

Substantial new limitations on private residential development in shoreline areas, even though the "single family home" is nominally exempt from permitting requirements under the SMA.

A thorough reading of these regulations leaves no doubt that the policy behind these changes is to limit, restrict and/or simply prohibit any future development along much of the state's shoreline area.

To the extent that such development is allowed, it will occur only in existing, developed areas, and even then will be subject to stringent new environmental requirements.

Without making a judgment as to the appropriateness of this policy, the result for local jurisdictions is a substantial loss of authority to regulate their own shorelines in a manner different from the perspective of the Department of Ecology.

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