Richard L. Settle Foster Pepper PLLC Professor of Law Emeritus Seattle University School of Law

1. APA Fall Conference SessionFrom a Lawyer’s Viewpoint: Shoreline Program UpdatesA brief history,foundational provisions,and governing principlesof the 2003 shoreline guidelines Richard L. Settle Foster Pepper PLLC Professor of Law Emeritus Seattle University School of Law settr@foster.com

2. Legal Effects of Shoreline Guidelines (WAC 173-26-171) • “The guidelines are guiding parameters. standards, and review criteria for local master programs.” • “The guidelines allow local governments substantial discretion to adopt master programs reflecting local circumstances and other local regulatory and non-regulatory programs related to the policy goals of shoreline management... .”

3. Legal Effects of Shoreline Guidelines (WAC 173-26-171) • “[T]hese guidelines constitute standards and criteria to be used by [Ecology] in reviewing the adoption and amendment of local master programs…and by the [Growth Management Hearings Board and Shorelines Hearings Board] adjudicating appeals of department decisions to approve, reject, or modify proposed master programs and amendments… .”

4. Legal Effects of Shoreline Guidelines (WAC 173-26-171) • “[T]he guidelines do not regulate development on shorelines…where approved master programs are in effect.” • “In local jurisdictions without approved master programs, development…must be consistent with the policy of RCW 90.58.020 and the applicable guidelines… .”

5. Legal Effects of Shoreline Guidelines (WAC 173-26-171) • Under RCW 90.58.060, Ecology is charged with periodic review and update of guidelines based on experience. If they are not working, let Ecology know.

6. A Brief History of the 2003 Shoreline Guidelines • For detailed history, see Appendix A Symposium on the 2003 Shoreline Guidelines. December, 2003 Issue Washington State Bar Association Environmental & Land Use Law Newsletter. • Guidelines had not been significantly amended since adopted in 1972, though review and update were required by RCW 90.58.060.

7. A Brief History of the 2003 Shoreline Guidelines • In 1999, Legislature directed comprehensive review and update. • 2000 Guidelines were controversial and appealed to Shorelines Hearings Board by 53 parties. • August, 2001, SHB invalidated 2000 Guidelines.

8. A Brief History of the 2003 Shoreline Guidelines • September, 2001, Attorney General Gregoire and Ecology Director Fitzsimmons called a meeting of parties to litigation to discuss making peace rather than continuing the litigation. • Retired Supreme Court Justice Richard Guy, Environmental Facilitator Bill Ross, and Richard Settle were appointed as mediators.

9. A Brief History of the 2003 Shoreline Guidelines • Mediation began January 2002, steering committee of representatives of wide range of interests met frequently for nearly a year. • Mediation was successfully concluded with a settlement agreement in December, 2002 on new set of Guidelines, process for rule-making on the new Guidelines, and proposed legislation on state funding of local SMPs and timetable for updates.

10. A Brief History of the 2003 Shoreline Guidelines • Rule-making was not controversial and 2003 Guidelines were adopted as proposed. • Legislature adopted funding and timetable bills. • No litigation.

11. Why the History of the2003 Guidelines Matters • Interpretation of Guidelines by local governments, Ecology, and GMHB: Best source of rule-making history showing intent of Guidelines. • Scope of local discretion in developing Shoreline Master Programs (SMPs).

12. Why the History of the2003 Guidelines Matters • “Governing Principles”: Overarching Limitations on the Specific Guidelines. • New Ecology Personnel and Fading Memories.

13. Foundational Provisions(See Appendix B) • Authority, purpose, and effects of guidelines (WAC 173-26-171). • Cooperative Program between State and Local Governments. • “Local Government shall have primary responsibility for planning and regulatory program.” • “Ecology shall act primarily in a supportive and review capacity with an emphasis on providing assistance to local governments.” • “The Guidelines allow local governments substantial discretion to adopt master programs reflecting local circumstances and other local regulatory and non-regulatory programs.”

14. General Policy Goals of the Act and Guidelines(WAC 173-26-176 and -181; See Appendix B) • Conveniently sets forth SMA’s statement of policies in RCW 90.58.020 and RCW 90.58.100. • Policies are diverse and intercompetitive.

15. Governing Principles of the Guidelines (WAC 173-26-186; See Appendix B) • Guidelines are subordinate to the statute. Statute governs any inconsistencies. • Guidelines are intended to reflect the policy goals of the act, as described in WAC 197-11-176 and -181. • All relevant policy goals must be addressed in planning policies of SMP.

16. Governing Principles of the Guidelines (WAC 173-26-186) • Planning policies of SMPs may be achieved by a number of means other than regulation of development. • Policy goals of act and planning policies of SMPs may not be achievable by development regulation alone. Planning policies should be pursued through the regulation of development of private property only to an extent that is consistent with all relevant constitutional and other legal limitations (where applicable, statutory limitations such as those contained in Ch. 82.02 RCW and RCW 43.21C.060) on the regulation of private property.

17. Governing Principles of the Guidelines (WAC 173-26-186) • Territorial jurisdiction of SMPs’ planning function and regulatory function are legally distinct. • Planning policies and regulatory provisions of SMPs and comprehensive plans and development regulations shall be integrated and coordinated.

18. Governing Principles of the Guidelines (WAC 173-26-186) • The act makes protection of the shoreline environment an essential statewide policy goal consistent with the other policy goals of the act: INVENTORIES of ecological functions; policies and regulations designed to achieve NO NET LOSS of ecological functions; planning (but not regulation) to achieve RESTORATION of degraded shoreline ecological functions.

19. Governing Principles of the Guidelines (WAC 173-26-186) • Local discretion to balance policy goals and amend SMPs to reflect changing circumstances. • Local governments in adopting and amending SMPs and Ecology in reviewing SMPs shall use methodologies specified in Statute (Not best available science).

20. Governing Principles of the Guidelines (WAC 173-26-186) • In reviewing and approving local actions, Ecology shall insure that the state’s interest in shorelines is protected.

21. Recent Relevant Court & GMHB Decisions • Citizens for Rational Shoreline Planning v. Whatcom County, ___ Wn. App. ___, ___ P.3d ___ (2010) (Petition for Review by Supreme Court is pending.)

22. Recent Relevant Court & GMHB Decisions • Seattle Shellfish, LLC and Pacific Coast Shellfish Growers Association, Petitioner, v. Pierce County and Washington State Department of Ecology, Respondent, Case No. 09-3-0010, Central Puget Sound Growth Management Hearings Board State of Washington, 2010 GMHB LEXIS 2, January 19, 2010.

23. Recent Relevant Court & GMHB Decisions • Citizens for Rational Shoreline Planning and Ronald T. Jepson, Petitioners, v. Whatcom County and WA State Department of Ecology, Respondents, And Building Industry Association of Whatcom County, Intervenor, Case No. 08-2-0031, Western Washington Growth Management Hearings Board State of Washington, 2009 GMHB LEXIS 6, January 16, 2009.