Aquatic land policy plan draft

[From the U.S. Government Printing Office, www.gpo.gov]

DRAFT

AQUATIC LAND

QH
541.5 STATE OF WASHINGTON
DEPARTMENT OF
.C65 NATURAL RESOURCES
W375 Brian Boyle
1984 Commissioner of Public Lands
Art Stearns
Supervisor

Prepared by:
Marine Land Management Division
Department of Natural Resources
Project Manager:
Steve Tilley

Project Planner:
Judy Kelly

Contributing Staff:
Ron Holtcamp, Dan Barth,
David Jamison
Bob Coon, and Doug Magoon

Editor and Technical Coordinator:
Ellen Ellis

Graphics:
Michael Dickter and Don Ashton

Department of Natural Resources 1RA OL
OLYMPIA, WASHINGTON Commissioner of Public Lands
98504

June 1, 1984

Dear Reviewer:

The aquatic lands of Washington state are of tremendous social , environmental
and economic value. An irreplaceable public heritage, they belong to all
the citizens of the state, both today and tomorrow. The Department of Natural
Resources developed the Aquatic Land Policy Plan with this heritage in mind.

This plan has been recommended to me by the the department's aquatic lands
staff. After a two-month period during which I will be seeking views of the
public and affected interest groups, the plan will be reviewed and finalized.
New regulations will then be prepared using these policies as direction.

This document includes a description of how the state's aquatic lands were
acquired and how the role of the department as aquatic land manager has evolved.
It summarizes the relationship between the Harbor Line Commission, the Board of
Natural Resources and the department. Concepts important to aquatic land
management are discussed. This is followed by the department's aquatic land
management goals and the proposed policies that will guide the department's
daily activities on our aquatic lands.

The department is interested in your thoughts and concerns regarding these pro-
posed policies. In July, we will hold several public meetings to get your ideas
on the proposals and suggestions for improvements. Please see the inside back
cover for the public meeting nearest you.

The department has also completed a State Environmental Policy Act (SEPA)
checklist for the draft policy plan. The checklist is available upon request
at the department s Olympia and Area offices (see inside back cover). A deter-
mination of environmental significance will be made on the plan after the public
review process is completed this summer.

Written comments will he accepted until August 15 at the Department of Natural
Resources, Marine Land Division, QW-21, Olympia, WA 98504.

Thank you for your interest and participation in this important effort.

Sincerely,

Commissioner of Public Lands

Equal Opportunity/Affirmative Action Employer

U.S. DEPARTMENT OF COMMERCE NOAA
COASTAL SERVICES CENTER
2234 SOUTH HO&SO3N AVENUE
CHARLESTON, SC 29405-2413

DRAFT

AQUATIC LAND--

POLICY PLAN

i"P:_~'' oC,-'y >: r- -; _ ry

May 1984
STATE OF WASHINGTON
DEPARTMENT OF
NATURAL RESOURCES
Brian Boyle
Commissioner of Public Lands
Art Stearns
Supervisor

The preparation of this plan was financially aided through a grant from the
Washington State Department of Ecology with funds obtained from the Niational
Oceanic and Atmospheric Administration, and appropriated for Section 306 of
the Coastal Zone Management Act of 1972.

- TABLE OF CONTENTS

Introduction . .1...............

Mission and Goals .. ..........................7

Summary of Recommended Policies .. ...................11

Policies .. ...............................17

State Aquatic Land Ownership .. ....................19

Aquatic Land Use and Environmental Quality .. .............25

Use Authorization .. .........................29

Research and Development .. ......................31

Public Use and Access .. .......................32

Aquaculture .. ............................33

Navigation and Commerce Outside Harbor Areas .. ............36

Harbor Areas .. ............................38

Dredge Spoil Disposal .. .......................42

Material Extraction .. .........................45

Glossary .. ..............................47

Appendices .. ..............................53

Appendix A - DNR Authorities for Approving Marine Area Use .. .....A-i

Appendix B - Second Substitute House Bill 1231 ............ . -i

Appendic C - Federal, State and Local Regulation of Aquatic Lands. .C-i

- INTRODUCTION -

�- - - INTRODUCTION

Washington's aquatic lands were acquired from the federal government when
Washington entered the union on November 11, 1889. The federal doctrine of
"equal footing" guaranteed that each new state received the same rights as the
original thirteen states, including ownership of its aquatic lands. This allowed
the new state of Washington to assert title to the beds and shores of all navi-
gable waters within its borders.

Article XVII of the State Constitution declares that the State of Washington
"asserts its ownership to the beds and shores of all navigable waters in the
State...". Between 1889 and 1971 the state sold an estimated 61 percent of its
tidelands and 30 percent of its shorelands. Currently, the state asserts
ownership to approximately 11 square miles of harbor area, 140 square miles of
shorelands and 205 square miles of tidelands. In addition, the state's owner-
ship includes the beds of all navigable lakes and rivers, the hedlands of all
marine waters within 3 miles of shore, and all the bedlands of the Puget Sound.
(See diagram on page 5.)

DEPARTMENT MANAGEMENT OF AQUATIC LANDS

Department Organization

The Department of Natural Resources evolved from several commissions and agencies
created to administer state lands. The Legislature first established a State
Land Commission in 1889 to supervise and control public lands. In the years
that followed, several boards and commissions were formed to manage different
parts of the state's upland trusts. In 1957, the Legislature consolidated these
activities into the Department of Natural Resources, granting the agency
authority to manage some 5 million acres of state-owned land.

The aquatic lands under department jurisdiction are spread across the state.
The responsibility for management of these lands is divided between the Olympia
staff and DNR Area offices. The Olympia staff is responsible for program and
central policy development, research and development, record keeping and
managing harbor areas. The Areas carry out, on a day-to-day basis, the programs
and policies developed in Olympia. This includes site inspection, and lease
valuation, negotiation and administration.

Board of Natural Resources/Harbor Line Commission

The act which created the department in 1957 also formed a five-member Board
of Natural Resources to set policies and regulations governing the department.
The Legislature intended the Board to provide both public accountability and
professional expertise for the new agency. Board members include the Governor;
the Commissioner of Public Lands; the Superintendent of Public Instruction; the
Dean of the College of Agriculture, Washington State University; and the Dean of
the College of Forest Resources, University of Washington.

The Harbor Line Commission was originally formed in 1890 to gjovern the estab-
lishment of harbor areas in the state. The Commission was empowered to "locate
and establish harbor lines in the navigable waters of all harbors, estuaries,
bays and inlets of the state, whenever such navigable waters lie within or in
front of the corporate limits of any city or within one mile thereof.. ." When the
first commission went out of existence three years later, its duties were
transferred to the Board of State Land Commissioners. Those duties were in
turn given to the Board of Natural Resources in 1957.

The Board of Natural Resources now acts separately as the Harbor Line Commission.
Department personnel act as staff to both the Board and the Commission.

Department Duties and Activities

The Department Of Natural Resources acts as the proprietary agent for the state's
aquatic lands. The department is authorized to issue leases, rights of way,
easements and sale of valuable materials for aquatic lands. The terms and
conditions for each use approval depend on the kind of aquatic land involved
(see Appendix A).

The department manages aquatic lands both inside and outside harbor areas. The
department's earliest duties were meant to assist orderly development of the
state's economy. For instance, the department was given the authority to plat
and sell or lease tidelands and to approve such uses as county wharves, public
bridges, utility rights of way, oil and gas prospecting and impoundments of
water over tidelands. In the 1950s, the Legislature added the authority to
lease hedlands for sand and gravel removal and aquaculture.

In 1971, the Legislature passed two laws which added new dimensions to the
state's aquatic land program. RCW 79.01.470 prohibited further sale or gift of
first and second class tidelands. As of 1971, 61 percent of the state's tide-
lands had been sold. The Legislature determined with these new laws that the
state should retain and manage the remaining lands for the public.

The second law passed in 1971, which directly affected the department's aquatic
land programs, was RCW 79.68, "Multiple Use Concept in Management and
Administration of State-Owned Lands". The Act defined "multiple use" as pro-
viding for several uses simultaneously on a single tract and/or the planned
rotation of one or more uses on and between specific portions of the total
ownership.

Section .080 of this law, "Fostering Use of Aquatic Environment - Limitation,"
adds a requirement to the multiple use management concept that encourages cer-
tain marine uses. They include the commercial and recreational use of the
aquatic environment for production of food, fibre, income and public enjoyment
from state-owned aquatic lands.

In 1984, the Legislature passed a comprehensive new law affecting the state'Is
aquatic lands. SSH-B 1231 identifies water-dependent uses as priority uses for
state aquatic lands. The law directs the department to manage aquatic lands to

provide a balance of public benefits, including public access, enviromental pro-
tection, renewable resource use and revenue generation consistent with the pur-
pose of the Act. The Act allows for port management of some aquatic lands in
public port districts. Ports will manage these state aquatic lands in conform-
ance with state aquatic land policy and department regulations. The Act sets up
a new rate structure for aquatic land leases, provides incentives for water-
dependent uses and exempts from payment certain public recreation uses of state
aquatic lands. The Act also dedicates a portion of aquatic land revenues to
aquatic land enhancement projects. (See Appendix B.)

The department identifies and asserts state ownership to aquatic lands under
its jurisdiction. Detailed records are kept of publicly owned lands and the state
enters into claim questions when the rights of the public are limited or
challenged by ownership disputes. The department leases aquatic lands for private
use when suitable and ensures that the state receives fair compensation. Public
benefit programs, such as public beach enhancement and identification, are impor-
tant elements of our management activities. Research is conducted to find ways to
better identify and use renewable resources on the state's aquatic land and to
improve operation methods.

~~~,OUTER ...HARBOR E AREA

SCHEMATIC DIAGRAM of SHORELANDS
DNR AQUAATIC LAINDS

1BED OF NAVIGGABLE RIVER
BED OF NAVIGABLE RIVER

PURPOSES OF THE AQUATIC LAND POLICY PLAN

This plan explains the department's proposed goals and policies which are designed
to incorporate legislative and judicial direction into department decisions.
Detailed direction for specific programs, such as the geoduck fishery or harbor
area management, will come later.

This plan is designed to help the department and the public better understand
aquatic land issues. These goals are consistent with the constitutional and
legislative direction under which the department acts. The goals also build
upon the requirements of the new aquatic lands legislation (SSHB 1231). The
policies set forth in the final plan will guide department aquatic land manage-
ment activities.

The mission and goals statements which follow define overall department
interests. The sections on policy cover specific management issues. Proposed
policies are stated on the left side of the page. The text on the right
explains the issue and the reasoning behind the proposed policy. Uncommon terms
are defined in the glossary. The appendices contain information on department
authorities, other agency's jurisdictions on aquatic lands, and a copy of SSHB
1231 passed in 1984.

MISSION AND GOALS -

- MISSION-

The Department of Natural Resources will manage Washington's public
aquatic lands to provide a balance of public benefits for all citizens
of the state.

GOALS OF AQUATIC LAND MANAGEMENT

Conserve and enhance aquatic lands and associated resources

Meet or exceed environmental quality standards.

Maintain or improve the productivity and useful-
ness of aquatic lands.

Provide high quality habitat for wildlife on state
aquatic lands.

Provide social and economic benefits

Promote access to and recreational use of state
aquatic lands.

Encourage water dependent uses.

Promote the production on a continuing basis of
renewable resources.

Allow suitable state aquatic lands to be used for
energy and mineral production.

Generate incone from use of aquatic lands.

SUMMARY OF RECOMMENDED POLICIES

SUMMARY OF RECOMMENDED POLICIESe

SUMMARY OF RECOMMENDED POLICIES

STATE AQUATIC LAND OWNERSHIP

0Navigable waters are considered to be all tidal waters and nontidal waters
found navigable by the courts, bounded by meander lines or for which there
is evidence of capability or' susceptibility of use for commerce. (See page 19.)

o The ordinary high water mark is considered to he the line of upland vegeta-
tion or, in the absence of vegetation, the line of mean high water. (See
page 20.)

o Standards for establishing lines of navigability will be developed and
applied where necessary to resolve boundary questions. (See page 21.)

a Shorelands will not be sold, pursuant to RCW 79.94.210, until there is
legislative clarification on when shoreland sales would be in the public
interest. (See page 22.)

o Aquatic lands will not he sold. The needs of public agencies will be accom-
modated through interagency agreement, permit or other instrument. (See page
23.)

o Bush and Callow Act lands may be used for shellfish culture or open space.
Other uses may be allowed after full ownership has reverted to the state.
(See page 23.)

0 Reversionary rights to Bush and Callow Act lands will not he sold. Bush Act
deed holders may propose exchanges with the state for more suitable proper-
ties. (See page 23.)

o Site specific management plans for aquatic lands fronting state parks will
be developed in cooperation with the State Parks and Recreation Commission.
(See page 23.)

o The department will actively assert ownership to state-owned aquatic
lands and will provide information to the public on the extent of state
ownership. (See page 24.)

AQUATIC LAND USE AND ENVIRONMENTAL QUALITY

o The department will cooperate with local governments and the Department of
Ecology to develop shoreline management plans for state aquatic lands.
Whenever possible, the department will implement its aquatic land management
objectives through local shoreline management plans. (See page 25.)

o In addition to local shoreline planning, the department may develop plans to
guide aquatic land uses in which DNR has a direct management interest or
which place severe demands on state aquatic lands. (See page 25.)

o The department may develop plans for aquatic land areas needing special pro-
tection or which are faced with severe user competition. (See page 25.)

o Use authorizations will be issued only when they are in compliance with the
State Environmental Policy Act (SEPA) and other applicable environmental
standards. (See page 26.)

o Mitigation or replacement can be required of developments which cause
significant loss of resource productivity, habitat or public use. Special
use requirements may be imposed where necessary to protect environmental
quality for statewide interests such as public use and aquaculture. (See
page 26.)

o The department may withdraw from lease or apply use restrictions to aquatic
lands identified by the department as environmentally sensitive. (See page
26.)

o Commercial and industrial development will be encouraged to locate in
developed areas or in areas planned for those uses. (See page 26.)

o The department will encourage aquatic land uses on the basis of their
water dependency. (See page 27.)

USE AUTHORIZATION

o Lease duration will be based on consistency with aquatic land management
goals and policies. (See page 29.)

o Trespasses on state aquatic lands will be brought under lease if they meet
all normal lease requirements. (See page 29.)

o Trespasses constructed before June 30, 1972 that do not comply with normal
requirements may be allowed to remain under "unauthorized use and occupancy"
(U&0) status. (See page 30.)

o Trespasses constructed between June 30, 1972 and June 30, 1984 that do not
comp y with normal requirements will be allowed to remain for up to five
years and required to pay a penalty fee. (See page 30.)

o Trespasses placed or constructed after June 30, 1984 that do not meet normal
requirements must be removed. (See page 30.)

RESEARCH AND DEVELOPMENT

o Research and development activities will be conducted to improve the produc-
tivity of renewable resources, enhance recreational opportunities and/or
ensure protection of the environmental quality of aquatic lands. (See page
31.)

PUBLIC USE AND ACCESS
o The department will actively improve public access and recreational use of
state-owned aquatic lands. (See page 32.)
o Public access and recreational use of aquatic lands will be encouraged
through lease terms and conditions. (See page 32.)

o Public use and access programs will be coordinated with local recreation
planners and the Interagency Committee for Outdoor Recreation. (See page 31.)

AQUACULTURE

o The department will promote aquaculture by developing information on
aquaculture techniques, by providing economic incentives for experimental
aquaculture industries and by assisting aquaculturists in obtaining appro-
vals for use of prime state-owned aquaculture lands. (See page 33.)

o The department will encourage local governments to reserve and protect
suitable prime aquaculture areas on state-owned aquatic lands. In addition,
the department may identify, reserve and protect from incompatible use,
state-owned aquatic lands with prime suitability for aquaculture. (See page
34.)

NAVIGATION AND COMMERCE OUTSIDE HARBOR AREAS

o The department will conduct or support studies to identify suitable sites for
water-dependent commerce and industry outside harbor areas. (See page 36.)

o The department will work with shoreline management programs to ensure space
is available outside harbor areas to serve the needs of water-dependent
commerce and industry. (See page 36.)

o In the absence of other control, the department may apply development
controls to protect navigation parallel to the shore or between the water
and upland. (See page 37.)

HARBOR AREAS

The department will encourage coordinated planning for harbor area
development to meet the needs of preferred uses and to integrate other
uses where compatible with preferred uses. (See page 39.)

� Maritime trade and other commercial navigation uses are preferred uses of
harbor areas. Public use and access should be encouraged when consistent
with preferred uses. (See page 39.)

o Nonpreferred uses may be allowed in harbor areas when not detrimental to the
long-term availability of harbor area space for preferred uses. (See page
39.)

o Waterways shall be used primarily to provide access to uplands for loading
and unloading of watercraft and secondarily for short-term moorage. (See
page 40.)

� Waterway use will be managed consistent with statewide interests. The
department will encourage local governments to regulate short-term
transient waterway use. (See page 41.)

DREDGE SPOIL DISPOSAL

o The department will encourage beneficial use of dredge spoils before
allowing in-water disposal. The priority for disposal is uplands first,
deep water sites second and state-owned wetlands only when no other
practical alternative exists. (See page 42.)

o Appropriate sites will be designated in consultation with the Interagency
Open Water Disposal Site Evaluation Committee and monitored to ensure that
material is dumped at the designated sites. (See page 43.)

o Disposal fees will be set to cover the cost of program operation and moni-
toring compliance with permit conditions. Public agencies will either be
charged for disposal or required to certify compliance with monitoring stan-
dards established by the department. (See page 43.)

MATERIAL EXTRACTIO"

o Sand and gravel extraction will be authorized only when no preferable upland
site or dredge material exists. (See page 45.)

o Surface drilling is prohibited on state-owned aquatic lands. (See page 46.)

~~~~~~~~-POICE--

STATE AQUATIC LAUD OWNERSHIP

Extent of State Ownership

Washington's constitution claimed ownership of
Navigable waters are lands under "navigable" rivers, lakes and marine
considered to be all waters. Under the law, all tidal waters are clearly
tidal waters and nontidal navigable but there is no legislative guidance on
waters found navigable how to determine which rivers and lakes are navi-
by the courts, bounded gable. The department constantly is faced with
by meander lines or for questions about the extent of state ownership.
which there is evidence A policy is needed to guide department responses
of capability or sus- to ownership questions.
ceptibility of use for
conmmerce. The narrowest definition of navigability considers
freshwater bodies state-owned only if they have
been declared navigable by th-e-courts. Under this
definition the department could exert proprietary
control over only a small part of the state's
freshwater area. Large rivers and lakes would not
be included because they are assumed to be navi-
gable but have never been so named in court cases.
Under this definition, water bodies found to he
navigable would not be protected for the public
until the courts were able to act.

The most inclusive policy would consider all
freshwater bodies "navigable" if suitable for
recreational navigation. This would include the
shallowest lakes and rivers.

The approach most consistent with court interpreta-
tion considers freshwaters navigable if they are
bounded by meander lines or there is evidence of
capability or Susceptibility of use for commerce"
Meander lines (established in original government
surveys to segregate uplands from navigable waters)
indicate historical suitability. However, they are
not legal evidence of navigability. "Capability
and susceptibility for commerce" is a measure of
federal jurisdiction in navigable waters under the
Commerce Clause of the U.S. Constitution.

Ordinary High Water

The landward boundary of nontidal navigable waters
is called the line of "ordinary high water" (where
shorelands have not been sold). This term is not
quantitatively defined in state statute or case law.

STATE AQUATIC LAND OWNERSHIP

At issue is the ultimate ownership of thousands
The ordinary high water of acres statewide which lay between the eleva-
mark is considered to be tion indicated by annual grasses and the eleva-
the line of upland veg- tions reached during normal high water periods.
etation or, in the The department needs a working definition of the
absence of vegetation, high water mark to respond to day-to-day
the line of mean high ownership Questions.
water.

The department could base its actions on the most
recent federal court decision. However, this deci-
sion is being appealed and is based on a Whatcom
County Superior Court case. (The state was not a
party to the Whatcom County case and did not have
an opportunity to present its interests.) That
case was complicated by the presence of meander
lines and only concerned a lake. River banks may
undergo much greater changes in vegetation than
lakes.

Before the Whatcom County case, the State Land
Office defined the ordinary high water mark as
the line of permanent vegetation. This is dif-
ferent from the agriculture test because agri-
culturally useful grasses may invade a river bank
for a season or two and then be scoured away by
normal high waters. Permanent vegetation indica-
tes the normal upper limit of these high water
occurrences. Due to the special nature of the
Whatcom County decision, the state has con-
tinued, without court challenge, to define ordi-
nary high water as the line of permanent
vegetation.

In some cases, there is no vegetation present to
judge the high water mark against. The high water
mark in these cases could be determined by
topociraphy or by using a given river level such
as mean high or low water. Objectively evaluating
the river level would be difficult using topography
alone. Using mean high water would correspond to
tideland practice and to Constitutional language.
Using low water would eliminate vast areas from
potential public ownership and might be interpreted
as giving away the state's property without compen-
sation.

STATE AQUATIC LAND OWNERSHIP a

Boundary of Private Shorelands
Until 1971, the department was authorized to sell
Standards for establishing tidelands and shorelands. Tideland deeds have a
lines of navigability will clearly defined waterward boundary of private
be developed and applied ownership but many shoreland deeds do not. The
where necessary to resolve Legislature and the courts have determined that the
boundary questions. waterward boundary of private shorelands is the
line of ordinary navigation or line of navigabi-
lity. While these terms have the same meaning, they
have no workable definitions. The Harbor Line
Commission is authorized to define the ownership
boundary on first class shorelands (which were
originally sold as second class shorelands) by
defining the inner harbor line. The Legislature
clearly has authority to set lines of navigability
on second class shorelands. However, there has been
no specific delegation of this authority.
When requested to address the navigability issue,
methods could include: 1) letting the courts
handle the matter, 2) establishing lines of navi-
gability on a case-by-case basis, or 3)
establishing statewide standards and setting lines
of navigability accordingly. Leaving the matter
to the courts would eliminate administrative
settlement of these issues and would create a

LINE OF NAVIGABILITY
BlHORELANDS SHIORELANDS

LINE OF ORDINARY HIGH WATER ,

SHORELANDS

STATE AQUATIC LAND OWNERSHIP . ,

burden on the court system. Establishing lines
on a case-by-case basis could result in windfalls
to the state or to private shoreland owners,
depending on how particular cases are determined.
Standards would ensure that private property
owners and the state are treated equally in each
case.

The Harbor Line Commission has given shoreland
owners assurance that the state will not establish
lines of navigability without the owner's consent
and involvement. In March, 1984, the Commission
adopted Resolution 447 which states:

... the Department of Natural Resources
[shall] not initiate establishment of lines
of navigability on any shorelands unless
requested to do so by the shoreland owners
or their representatives.

Sale of Shorelands

RCW 79.94.210 authorizes the sale of rural lake
Shorelands will not be sold, shorelands having minimal public value when in the
pursuant to RCW 79.94.210, "public interest". Diamond Lake in Pend Oreille
until there is legislative County was the first lake considered for sale.
clarification on when After reviewing the department's recommendations
shoreland sales would be and public comments, the Board of Natural
in the public interest. Resources adopted a resolution rejecting shoreland
sales around Diamond Lake until the Legislature
better defines which lands should be sold.

Sale of Aquatic Lands to Public Entities

The laws authorize the sale of tidelands and
Aquatic lands will not be shorelands to public entities (RCW 79.94.150(2)).
sold. The needs of public The department has not found a time when sale of
agencies will be accomno- aquatic lands to public entities would be in the
dated through interagency public interest. (The sale of Smith Cove Water-
agreement, permit or other way to the Port of Seattle was mandated by the
instrument. legislature.) There are other ways to allow public
use of aquatic lands which would not permanently
transfer the land out of state ownership.

STATE AQUATIC LAND OWNERSHIP

TIDELANDS

EXTREME HIGH TIDE
UPLAND MEAN HIGHER HIGH TIDE
V'OOi[~ AX O~'~H~~. MEAN HIGH TIDE

MEAN TIDE LEVEL
MJELAND
PUi$'IC. O;R PRI',Afl OWNIE~i'JF ' ~
MEAN LOW TIDE
MEAN LOWER LOW TIDE
EXTREME LOW TIDE

SEDLAND
"ULIO WER$

Bush and Callow Act Lands

The Bush and Callow Acts allowed the state to sell
Bush and Callow Act lands aquatic lands on condition they he used for shell-
may be used for shellfish fish culture only. The deeds specified that if the
culture or open space. lands were used for other purposes, ownership would
Other uses may be allowed revert to the state. In some cases, the law
after full ownership has allowed oyster growers to trade their aquatic lands
reverted to the state. for others owned by the state or to purchase the
reversionary rights. However, the Legislature
Reversionary rights to Bush prohibited sale of aquatic lands in 1971. In 1983
and Callow Act lands will the Legislature repealed the original legislation
not be sold. Bush Act deed which authorized sale of reversionary rights.
holders may propose
exchanges with the state
for more suitable
properties. Coordination with the State Parks and Recreation
Commission

The Commissioner of Public Lands may withdraw aquatic
Site specific management lands from sale for state park purposes. The
plans for aquatic lands Commissioner made a number of such withdrawals before
fronting state parks will the Legislature prohibited sale of aquatic lands in
be developed in cooperation in 1971. The department and the State Parks and
with the State Parks and Recreation Commission are developing joint site
Recreation Commission. specific management plans for the aouatic lands
which abut state parks. The new aquatic land
legislation (SSHB 1231) reaffirms the importance of
such cooperation. Aquatic land leases in front of
state parks now require consultation or approval
from the Commission.

STATE AQUATIC LAUD OWNERSHIP

Ownershi p Assertion

Private parties often claim ownership of aquatic
The department will actively lands the department believes are state-owned.
assert ownership to state- This is partly due to lack of public knowledge
owned aquatic lands and will about the law, and partly due to disagreements
provide information to the over legal interpretation. The department could
public on the extent of address these cases as they occur or begin action
state ownership. to identify potential conflicts and resolve them.

AQUATIC LAND USE AND ENVIRONMENTAL QUALITY

Land Use Planning
The department may develop multiple use management
The department will plans for state-owned aquatic lands. These plans
cooperate with local provide for several simultaneous uses on a single
governments and the tract or for planned rotation of one or more uses
Department of Ecology to between parts of the ownership. Plans must con-
develop shoreline manage- sider natural, economic and social factors.
ment plans for state (RCW 79.68).
aquatic lands. Whenever
possible, the department The department is also responsible for siting and
will implement its aquatic relocating harbor lines and waterways. These
land management objectives planning activities are similar to upland zoning
through local shoreline and platting.
management pl ans.
Aquatic land use plans must he consistent with the
In addition to local Shoreline Management Act (RCW 90.58.340), Department
shoreline planning, the of Ecology guidelines and local shoreline plans.
department may develop The Act allows DOE to recommend land use controls
plans to guide aquatic for state-owned aquatic land and requires that
land uses in which DNR local shoreline plans consider Department of
has a direct management Natural Resources land use recommendations.
interest or which place (RCW 90.58.)
severe demands on state
aquatic lands. The department may adopt policies and rules nec-
essary to carry out the intent of the Legislature.
The department may develop (RCW 43.30.150.)
plans for aquatic land
areas needing special pro- All agencies could rely on the Shoreline Management
tection or which are faced Act for general aquatic planning. However, special-
with severe user compe- ized department responsibilites such as fostering
tition. aquaculture, encouraging public use and reserving
harbor areas for navigation and commerce benefit
from planning. For example, the department has
assumed responsibility for coordinating the use of
deep water spoil disposal sites. This requires re-
gional analysis of aquatic land use needs and capa-
bilities which can he accomplished by coordinating
with local shoreline planners wherever possible and
developing additional plans when needed.

Environmental Quality

The department's duties to protect environmental
quality on state-owned aquatic lands stem from our
enabling legislation and from the State Environ-
mental Policy Act (SEPA).

AQUATIC LAND USE AND ENVIRONMENTAL QUALITY

The legislature recently enacted SSHB 1231 which
Use authorizations will be requires the department to "consider the natural
issued only when they are values of state-owned aquatic lands as wildlife
in compliance with the State habitat, natural area preserve, representive
Environmental Policy Act ecosystem or spawning area prior to issuing any
(SEPA) and other applicable initial lease or authorizing any change in use."
environmental standards. In addition, the department "may withhold from
leasing lands which it finds to have significant
M~itigation or replacement natural values, or may provide within any lease
may be required of devel- for the protection of such values."
opments which cause Sig-
nificant loss of resource The department could protect the aquatic environment
productivity, habitat or in several ways. Criteria could be developed to pro-
public use. Special use tect aquatic lands from all environmental degradation
requirements may be imposed or the department could focus on protecting environ-
where necessary to protect mental quality for aquatic uses of statewide
environmental quality for interests. Other agencies' controls are now in
statewide interests such effect for water quality, aesthetics and fisheries.
as public use and Rather than duplicate those programs, the department
aquacultured. should rely on them whenever possible. There are
certain statewide interests in which the department
The department may withdraw has special expertise and responsibility, such as the
from lease or apply use re- protection of aquatic lands for aquaculture and public
strictions to aquatic lands use and those values specifically cited in SSHB 1231.
identified by the depart- In these cases, the department may want to implement
ment as environmentally specific environmental protection measures.
sensitive.
Protection of environmental quality may be done on
a project-by-project basis only or with supple-
mental planning to protect sensitive areas. Ad-
vance identification of environmentally sensitive
areas helps to control cumulative impacts of indi-
vidual projects. It also alerts developers and the
department to areas where development problems may
occur.

Concentration of Commercial and Industrial Devel-
opmen t

Concentrating intensive development is a common
Commercial and industrial practice in control of upland development. This is
development will be en- also practiced under the Shoreline Management Act.
couraged to locate in Clustering of compiercial and industrial develop-
developed areas or in ment usually allows better use of governmental
areas planned for those services and utilities, and concentrates environ-
uses. mental impacts in developed areas.

AQUATIC LAND USE AND ENVIRONMENTAL QUALITY

The department could leave this type of aquatic land
use decision to other agencies. However, this would
ignore a major part of the responsibility the
Legislature has given the department.

Other options would encourage or require commercial
and industrial development to locate in developed
areas. Requiring commercial facilities to locate
in existing harbor areas is difficult to admin-
ister due to a lack of good information on what
practical space is available. Also, some busi-
nesses such as aquaculture, gravel extraction and
petroleum shipping have special locational require-
ments.

A policy to encourage development clustering would
allow more flexibility. Specific clustering
requirements could be added if necessary. The
needs of aquaculture and other resource-based
industries could he met by reouiring that upland
plans also be considered in location decisions.

Water Dependency

In some areas there is intense competition for
The department will use of aquatic lands, particularly those near the
encourage aquatic land shoreline. The concept of "water dependency" is
uses on the basis of their an accepted criteria for allocating this space.
water dependency. However, the definition of the terms varies.

In SSHB1 1231, the Legislature requires that mana-
gement of state-owned aquatic lands:

preserve and enhance water-dependent uses.
Water-dependent uses shall be favored over
other uses in aquatic land planning and in
resolving conflicts between competing lease
applications. In cases of conflict between
water-dependent uses, priority shall be given
to uses which enhance renewable resources,
water-borne commerce, and the navigational
and biological capacity of the waters, and to
statewide interests as distinguished from
local interests. (Sec. 3. (1))

The legislation includes lease fee schedules which
give preferential treatment to water-dependent uses.

AQUATIC LAND USE AND ENVIRONMENTAL QUALITY

In addition to lease rates, the department can varyI
the lease period (term) and apply lease conditions
which favor water-dependent uses. Manipulating the
lease term can ensure that space is available for
water-dependent uses when needed in the future.
Varying lease conditions can ensure that nonwater-
dependent uses don't reduce the value of adjoining
property for water-dependent uses.

USE AUTHORIZATION

Lease Duration

The department has proprietary authority over
Lease duration will be state-owned aquatic lands. The department may
based on consistency with conclude leases, easements, rights of way and
aquatic land management other agreements for use of state-owned aquatic
goals and policies. lands. Uses, lease terms and conditions differ
according to the type of aquatic land involved.
Bedlands and harbor areas miay be leased for a maxi-
mum of 30 years; tidelands and shorelands for
55 years. There is no legal guidance on when to
vary from the maximum term. Lease duration could
always be set at the legal maximum. It could also
be based on the needs of the lessee or on the
project's consistency with the state's aquatic land
management legislative goals and policies. It could
also be based on some combination of the last two
factors.
The law allows the Commissioner of Public Lands to
base lease duration decisions on the "public in-
terest". However, more practical guidance is needed
for day-to-day lease administration. Always issuing
leases for the maximum term would mean that projects
must always be in the public interest. Shorter
leases could not he issued for an "interim" use.
Setting lease duration entirely on the basis of
lessee needs would, like using the maximum, limit
the department's ability to negotiate.
The department has greater control in regulating
use of aquatic lands by varying the lease period.
This allows the departmemt to accept some short-
term uses which otherwise would not be allowed due
to possible long-term problems.

Trespass

Until 1972, the department did not actively try
Trespasses on state to identify unauthorized uses on state aquatic
aquatic lands will be lands. Structures built in trespass or illegal
brought under lease if uses were occasionally found and either put under
they meet all normal lease lease or put on "unauthorized use and occupancy"
requirements. (U&O) status. There was no penalty for using
aquatic lands without permission, and structures
were rarely required to be removed.

USE AUTHORIZATION

In 1972, the department began surveys to identify
Trespasses constructed unauthorized uses and attempted to bring them under
before June 30, 1972 that lease. The department also began to monitor permit
do not comply with normal requests from other agencies so that developers
requirements may be could be alerted -to the need for use agreements.
allowed to remain under
"1unauthorized use and s. There are many U&Os in effect now and many devel-
occupancy" (U&O) status. opments not yet identified. For those constructed
in the past, there are several options: allow
Trespasses constructed them to continue as U&Os or with no official ap-
between June 30, 1972 and proval at all; allow those constructed long ago
June 30, 1984 that do not to remain and phase out later ones; or require
comply with normal removal of all unapproved developments. Allowing
requirements will be known unapproved developments to continue would
allowed to remain for up be illegal and unfair to approved lessees. To
to five years and required require removal of all developments built before
to pay a penalty fee. the state began active enforcement might be unfair
especially if the improvements don't substantially
Trespasses placed or interfere with public use of the water. Develop-
constructed after June 30, ments constructed since use authorization require-
1984 that do not meet nor- have become common knowledge can be treated
mal requirements must be differently.
removed.

RESEARCH AND DEVELOPMENT-

State law requires the department to "foster the
Research and development commercial and recreational use of the aquatic
activities will be con- environment for production of food, fibre, income
ducted to improve the and public enjoyment from state-owned aquatic lands
productivity of renewable under its jurisdiction and from associated waters".
resources, enhance rec- To do this, the law authorizes the department to
reational opportunities "develop and improve production and harvesting of
and/or ensure protection seaweeds and sealife attached to or growing on
of the environmental aquatic land or contained in aquaculture
quality of aquatic lands. containers" (RCW 79.68.080). These are research
and development activities.

The authorization for research and development is
fairly broad. The department could end research
and development or it could engage in theoretical
research that might have no practical benefit for
the state. The department could also target
research and development to relate to such prac-
tical needs as producing income, protecting the
environment, improving recreation and fostering
aquacul ture.

Ending research and development would ignore the
expressed interest of the legislature. Research
with no practical value would not achieve the
results the legislature intended.

PUBLIC USE AND ACCESS-

Department Involvement in Recreation and Access

In 1971, the legislature directed the department
The department will to foster recreational use of state-owned aquatic
actively improve public lands (RCW 79.68.080). This law was reinforced
access and recreational through the leciislation passed in 1984 (SSHB 1231)
use of state-owned which calls for the department to "enhance oppor-
aquatic lands. tunities for public recreation and shoreline access".
SSHB 1231 also establishes a fund to support these
activities.

The department fosters recreation and access both
directly and indirectly. As part of its direct
fostering activities, the department has provided
underwater reefs for recreational enhancement,
marked public beaches, published booklets on the
location of public beaches in Puget Sound and
planted oysters on public beaches.

A policy limiting the department to indirect
fostering activities could curtail public beach
marking and advertising. The department believes
that ending direct enhancement efforts would not
comply with the intent of the legislation or be
in the best interest of the public, which con-
sistently identifies recreation as a high priority
use of public aquatic lands.

Public access and rec- The department already promotes public access
reational use of aquatic through fee reductions on selected harbor area
lands will be encouraged leases. SSH-B 1231 eliminates lease fees for certain
through lease terms and public recreation facilities. Public access could
conditions. be further encouraged through lease terms and
conditions for projects outside harbor areas.

Several state and federal agencies have direct
Public use and access pro- responsibility over recreational development. The
grams will be coordinated Interagency Committee for Outdoor Recreation (IAC)
with local recreation plan- coordinates a statewide effort of identifying
ners and the Interagency recreational needs and assigns funds for the
Committee for Outdoor highest priority projects. The Department of Game
Recreation. also has an interest in recreational use of state
- ~~~aquatic lands. There is a need for interagency
coordination in establishing department priorities
for aquatic land recreation and access development.

AQUACULTURE

Fostering Aquaculture

Except for oysters and clams, aquaculture is a
The department will pro- young industry in Washington. Within the last 20
mote aquaculture by years, pen rearing of salmon and raft rearing of
developing information on mussels have become successful commercial enter-
aquaculture techniques, by prises. However, most aquaculture is in the stage
providing economic in- that agriculture was lO0 years ago, relying on the
centives for experimental experimentation and experience of individuals,
aquaculture industries and rather than on proven research.
by assisting aquaculturists
in obtaining approvals for The Legislature recognized the potential benefits
use of prime state-owned of organized research in 1972.
aquacultural lands.
The department of natural resources shall
foster the commercial...use of the aquatic
environment for production of food, fibre,
[and] income...from state-owned aquatic lands
under its jurisdiction and from associated
waters, and...may develop and improve
production and harvesting of seaweeds and
sealife attached to or growing on aquatic
land or contained in aquaculture
containers....(RCW 79.68.080.)

During the 1970s and early 1980s, the department
conducted research on growing seaweed for industrial
chemicals and food. Joint research was also begun
with the Department of Fisheries on methods to
replant geoducks. Smaller research projects invest-
igated techniques for re-seeding intertidal hard-
shell clams and for improving mussel setting.
Public education activities included publishing the
"Shellfish Aquaculture Handbook" and conducting
public workshops on the value of seaweed culture.

In the future, the department could reduce, maintain
or increase its level of aquaculture activity.
Eliminating all aquaculture research and promotion
would not be consistent with the legislative direc-
tion in RCW 79.68.080. Low levels of activity
might provide public education about aquaculture
practices and technical support to aquaculturists
about sites and permits. A midlevel effort might
provide economic incentives to experimental aqua-
culture industries and conduct research on promising
techniques. The most active role might include

AQUACULTURE

establishing "industrial parks" where access,
utilities and operating permits are secured.

The low level activity option and the do nothing
option are not compatible with RCW 79.68.080. The
most active option would place the department in
the inappropriate role of a developer.

Protection of the Resource Base

Aquaculture sites are limited by both social and
The department will physical factors. They compete for aquatic land
encourage local government space with other uses such as recreation, resi-
to reserve and protect dential amenity and sewage disposal. Aquaculture
suitable prime aquaculture is also limited to sites with special current,
areas on state-owned wind, water quality and habitat characteristics.
aquatic lands. In addi- As development pressures on aquatic lands increase,
tion, the department may sites with both natural and social suitability will
identify, reserve and pro- disappear unless positive steps are taken to pre-
tect from incompatible serve them.
use, state-owned aquatic
lands with prime suitabil- The department is authorized to guide and foster
ity for aquaculture. use of aquatic lands for aquaculture. The
aquatic land legislation of 1984 (SSHB 1231)
directs the department to consider natural value
in every aquatic land lease. Protecting prime
aquaculture sites is a type of natural value pro-
tection, since aquaculture can only exist in high
water quality areas.

RCW 79.68.080 authorizes planning for several,
simultaneous uses of aquatic land. The law also
allows the department to "foster the commercial and
recreational use of the aquatic environment for
production of food, fibre, income, and public
enjoyment..." The Shoreline Management Act requires
aquatic land authorizations to he consistent with
local master programs and allows the department to
participate in development of those plans.

The most limited role for the department in
managing aquaculture siting would be to comply
with local master programs but not contribute to
their development. This could result in loss of
prime aquaculture resources because local govern-
ments are often not aware of the statewide impor-
tance of sites within their communities.

AQUACULTURE

Alternatively, the department could establish
aquaculture reserves primarily for aquaculture
use which would be protected in spite of the
desires of local government. This approach could
be hampered by local governments who might prevent
use of any site by controlling adjacent upland
development.

The best role for the department appears to be
similar to past practice. The department would
work closely with local governments in their shore-
line management planning. The department could
help identify prime aquaculture lands and find ways
to make aquaculture development compatible with
other competing shoreline uses. Shoreline manage-
ment plans could be supplemented with the depart-
ment's authority to protect suitable aquatic lands
through lease arrangements and land withdrawals.

NAVIGATION AND COMMERCE OUTSIDE HARBOR AREAS

Providing for Future Space Needs of Water
Dependent Commercial and Industrial Development

The department has a mandate to protect aquatic
The department will con- lands for harbor development at cities through
duct or support studies to establishment of harbor areas. However, there
identify suitable sites has been and will be increasing need for harbor
for water-dependent comn- development in rural areas. Worldwide, the trend
merce and industry outside in port development is to relocate from urban centers
harbor areas. to rural locations. Changing port technology requires
less labor and more land, and benefits from being
The department will work separated from adjoining commercial and residential
with shoreline management development. Developments at Cherry Point and
programs to ensure space March Point in Puget Sound are examples of this
is available outside har- trend.
bor areas to serve the
needs of water-dependent The Washington Public Ports Association has
commerce and industry. prepared 20-year projections of facility needs for
port-managed activities. These deal mainly with
expansion of port operations in urban areas and do
not include petroleum handling. The Department of
Ecology has done studies on potential sites for
coal export and outer continental shelf platform
construction. The Corps of Engineers and Sea Grant
have done studies of marina siting needs.

Local governments have identified, in their shore-
line management plans, areas suitable for harbor
development. (Whatcom County identified the Cherry
Point area as suitable for certain types of
industrial piers.) However, shoreline plans are
usually based on existing development patterns and
on available studies of statewide need.

The department could respond to proposals for rural
harbor development on a case-by-case basis and rely
on shoreline management plans for guidance on indi-
vidual lease actions. This has been the practice.
However, needs for rural harbor development will
continue to change and there is currently no advo-
cate for statewide needs. This would be an
appropriate role for the department as manager of
state-owned aquatic lands.

NAVIGATION AND COMMERCE OUTSIDE HARBOR AREAS-af

Protection of Navigation in Rural Areas

There are a number of areas in the state where
In the absence of other shoreline develoment has disrupted or threatens to
control, the department disrupt navigation. Piers built at odd angles or
may apply development too far into the water can block entrance to creeks
controls to protect nav- or interfere with traffic along the shoreline. In
igation parallel to the harbor areas, harbor lines limit the extent of
shore or between the water waterward development and waterways protect
and upland. traffic routes between open water and upland. Al-
though no longer enforced, Corps of Engineers'
pierhead lines once guided development outside
harbor areas. Local shoreline management plans
establish preferred and permitted uses for shore-
line segments. The plans don't often establish the
waterward limit of development or identify
necessary navigation ways.

In laying out lease tracts, the department sets
waterward lease limits and sideline boundaries. In
the absence of harbor lines or construction limit
lines, department staff evaluate lease proposals on
a case-by-case basis. This approach can result in
developments that interfere with each other and
with navigation.

The department could continue with past practice
or, in intensively developed areas, establish con-
struction limit lines. To continue a case-by-case
approach would allow congestion to increase.
Once a development pattern is set (such as the
angles of piers to the shore) it is difficult to
change.

Construction limit lines and lease area sideline
boundaries should be set with consideration given
to the needs of shoreline developers, boaters and
viewers.

HARBOR AREAS

Article XV of the Washington State Constitution
requires the Legislature to provide for establish-
ment of harbor areas. These are to be located in
navigable waters within one mile of cities having
"harbors, bays, estuaries, or inlets." Harbor areas
have been established at a number of cities; most
are in Puget Sound. The Constitution requires that
harbor areas remain in state control and be "forever
reserved for landings, wharves, streets and other
conveniences of navigation and commerce." The
waters beyond the outer harbor line must remain open
for navigation.

Since statehood, many changes have occurred in
aquatic land management. Public ports have been
created and local governments have instituted their
own land use controls. The Shoreline Management
Act recently added statewide policy and a compre-
hensive shoreline management framework. The
constitutional directive for harbor areas remains,
however, and applies to all state agencies and
units of local government.

Use of Harbor Areas

The Department of Natural Resources is authorized
to lease aquatic lands in harbor areas. The
department's use authorizations must conform to

OUTER HARBOR LINE --7-HARBOR AREA
BED OF NAVIGABLE WATER
LINE OF EXTREME LOW TIDE LN

21sowt GLASS TMIADN IMR

LINE OF ORDINARY HIGH TIDE /,I ~ ~ I

SCHEMATIC DIAGRAM of a
TYPICAL HARBOR AREA

HARBOR AREAS-

constitutional use restrictions. Not long after
The department will harbor areas were established, pressures began to
encourage coordinated build for authorization of other than purely navi-
planning for harbor area gational use of harbor areas. Successive court
development to meet the interpretations have allowed more flexible use of
needs of preferred uses harbor areas. The most recent decision allowed
and to integrate other part of a sawmill to locate on a pier. This deci-
uses where compatible with sion was based on the large amount of vacant harbor
preferred uses. area aquatic land, on the state's ability to
control harbor area use, and on the fact that the
Maritime trade and other sawmill would not interfere with navigation and
cormmercial navigational commerce development.
uses are preferred uses of
harbor areas. Public use The demand for nonnavigational use of harbor area
and access should be is increasing sharply. This is especially true on
encouraged when consistent older central waterfronts such as Seattle, Port
with preferred uses. Angeles, Tacoma and Port Townsend. Shipping
technology has changed since these areas were
Nonpreferred uses may be developed. Major industry has moved away leaving
allowed in harbor areas vacant or underused structures and creating op-
when not detrimental to portunities for waterfront redevelopment.
the long-term availability
of harbor area space for
preferred uses. The simplest department policy would restrict
harbor area use to maritime trade. Cargo
handling, ship repair and ferry terminals would
be allowed but recreational marinas would not.
However, this would ignore the public demand for
nontrade-related commercial navigation and for
interim uses. It would also ignore the
Legislature's interest in encouraging use of
harbor area space for public use and access.

A more flexible approach would allow maritime
trade and other navigational uses outright, and
interim uses on a case-by-case basis. This
policy was followed until 1982. Its major draw-
back is that it does not consider the cumulative
impacts of interim uses or recognize the benefits
of harbor-wide planning.

The recommended policy is the most flexible. It
provides for the needs of maritime trade and allows
interim uses when consistent with plans for harbor
use. This policy would consider all demands for
harbor area use and make optimum use of harbor
space.

HARBOR AREAS

Waterways

State law requires waterways to be established
Waterways shall be used landward from outer harbor lines. These waterways
primarily to provide are to include all navigable streams and other
access to uplands for locations as necessary. Waterways have been estab-
loading and unloading of lished in all harbor areas. Seattle's Salmon Bay
watercraft and secondarily Waterway is the largest but there are many valuable
for short-term moorage. shorter ones. Waterways are to be reserved from
sale or lease and to "remain as public highways
for watercraft until vacated" (RCW 79.93.010).

Since the law gives no authority to lease water-
ways (unless a Corps of Engineers' pierhead line
exists waterward of the waterway line), the
department has not had a policy on waterway use
or management. Over the years, some waterways
have been substantially obstructed by landfills,
abandoned vessels or permanent moorage. On Lake
Union abuses of waterways became so flagrant that
the city began policing short-term waterway use.

There are still major unresolved questions about
proposals for long-term use of waterways by adja-
cent land owners.

The department could continue with no policy on
appropriate use. However, there would be no state-
wide consistency in waterway use and abuses would
likely continue. If the department were to adopt
a policy, it could be strict or flexible. A
strict policy might limit waterway use to pro-
viding access to uplands for loading and
unloading watercraft. A more flexible policy
might allow short-term moorage as a secondary
use. There appears to he no legal authority to
allow long-term obstruction of waterways.

The department recommends a flexible approach to
waterway use, recognizing the different demands
on waterways. Some, such as Salmon Bay, are
heavily used by boat traffic and should not be
obstructed, even temporarily. Other waterways can
be used for short-term moorage and still serve
public needs.

HARBOR AREAS

The department could continue its past practice of
Waterway use will be asserting no direct control over waterway use.
managed consistent with However, this has resulted in major waterway abuses
statewide interests. The and ignores the department's responsibility to
department will encourage manage these state-owned aquatic lands. Axltern-
local governments to atively, the department could manage short- and
regulate short-term, long-term waterway use. Regulating short-term
transient waterway use. waterway uses would overlap local government's nor-
mal police functions.

The recommended approach is to allow local govern-
ments to regulate short-term waterway use while the
department retains responsibility for overall
management and authorization of any long-term uses.

DREDGE SPOIL DISPOSAL

Priority of Disposal

For many years, disposal of spoils and other wastes
The department will occurred in Washington waters without the approval
encourage beneficial use of regulatory agencies. Concerned with the poten-
of dredge spoils before tial for environmental damage and conflicts with
allowing in-water dispo- other uses, the agencies formed a siting committee
sal. The priority for (the Interagency Open Water Disposal Site Evaluation
disposal is uplands first, Committee) in 1970 to address deep water disposal
deep water sites second issues.
and state-owned wetlands
only when no other prac- Disposal is limited by interagency agreement to
tical alternative exists. specific sites, selected so as not to conflict with
other marine land uses. Requlatory review is
intense. After a site is selected by the committee,
the department obtains a Shoreline Substantial
Development Permit from the county. A Corps of
Engineers' notice is usually issued for each
dredging project for the site and the applicant
provides spoil material samples to the
Environmental Protection Agency (EPA) and the
Department of Ecology (DOE) for analysis of the
chemical and physical contents. Material must be
certified by EPA and DOE as suitable for in-water
disposal before it can be dumped at the site.
The department administers 16 deep water sites;
issuing disposal permits, acquiring county permits
and monitoring disposal when necessary. In the past
the department has encouraged the beneficial use
of dredge spoil. Recognizing the high value of
state aquatic lands, a priority was established for
placement of spoils: first, beneficial upland use;
second, open water disposal.
In the future, the department could rearrange its
priorities for disposal, decreasing the emphasis on
beneficial or alternative upland use. However,
such a change does not appear to be in the public
interest or follow the philosophy of the state
Shoreline Management Act.
Given the newly recognized problems with toxicants
in the sediments of the Puget Sound, and the lack of
available department funding for monitoring, a
policy option could prohibit in-water dredge dispo-
sal. However, this would just transfer the problem
to the uplands and make many dredging projects
infeasible due to high disposal costs.

DREDGE SPOIL DISPOSAL - --- -

Establishing Sites and Associated Fees

The Interagency Open Water Disposal Site Evaluation
Appropriate sites will be Committee believes that site establishment is
designated in consultation ecologically less damaging than random disposal.
with the Interagency Open Providing convenient, acceptable sites greatly
Water Disposal Site reduces the cost of dredging projects and provides
Evaluation Committee and a place for materials not suitable for landfills.
monitored to ensure that Conflicts with other uses can he reduced through
material is dumped at the careful siting and adhering to water quality
designated sites. standards administered by state and federal
agencies.
Disposal fees will be set
to cover the cost of pro- The cost of the deep water disposal program as
gram operation and moni- administered by the department has greatly
toring compliance with increased in the past few years. The department fee
permit conditions. Public was originally set to cover program administration,
agencies will either be site surveillance and interagency research.
charged for disposal or However, the Corps of Engineers, who uses the sites
required to certify more than any other user, has not paid the disposal
compliance with monitoring fee. Consequently, recent revenue has only covered
standards established by program administration.
the department.
In addition to reduced revenue, newly discovered
chemicals found in the sediments of our inner har-
bors have raised the demand for greater chemical
testing of proposed waste spoils. As a result of
better testing ability, sediments formerly con-
sidered safe for open water disposal may be found
to have levels of chemicals that prevent in-water
disposal.

Several management options are available to the
department. These include evaluating sediment,
researching disposal impacts, and raising the
disposal fee. Alternatively, the department could
collect no fee and eliminate the program completely.
Applicants would obtain their own permits and would
still be responsible for complying with the EPA
standards for hazardous compounds. Eliminating
the program would likely result in more illegal
dumping and a return to the situation which existed
prior to interagency involvenient.

The interagency committee supports fees and
increased monitoring by the department. Currently,
the department proposes to monitor for permit

DREDGE SPOIL DISPOSAL

compliance, not for chemical analysis. Such analy-
sis is the responsibility of the EPA and DOE; the
department believes that a duplication of effort
is unnecessary and would place an additional bur-
den on users.
A midrange effort would allow the department to
continue to designate sites in cooperation with the
committee and limit the monitoring activities to
permit compliance (i.e., the material is being
dumped on-site). Quality certification would
still be done by DOE and EPA.

MATERIAL EXTRACTION

Sand arnd Gravel Extraction

Upland deposits of sand and gravel are nonrenewable
Sand and gravel extraction resources. Many potential sites have been taken
will be authorized only out of production by local zoning and by land uses
when no preferable upland which are incompatable with gravel extraction.
site or dredge material Many upland sites also have aesthetic characteristics
exists. which could be damaged if sand and gravel operations
were allowed. As dry land sites are withdrawn, the
industry looks to increased use of the renewable
river gravels administered by the department.

Use of river gravels can also cause changes. Sand
and gravel extraction may affect aquatic habitat
for fish spawning and rearing. Public gravel bars
provide access for numerous aquatic land recrea-
tionists. Public aquatic areas are often the
usual and accustomed fishing places for Washington's
treaty Indians. Fish and wildlife habitat is
protected by the Hydraulics Project Approval (HPA)
of the Departments of Fisheries and Game. However,
recreational and treaty Indian interests are
unprotected by the HPA.

The Department of Natural Resources currently has
23 active material purchase agreements for sand and
gravel on aquatic lands. Most of these contract
holders produce commercial sand and gravel for use
in the construction industry.

A range of policy choices are available to the
department. The department could authorize removal
of sand and gravel whenever requested, provided the
lease met all the environmental requirements.
While such a practice would follow the intent of
the department's requirements, it might not ade-
quately protect the state's valuable aquatic
resources.

The department also has the option to end all sand
and gravel leases. Recognizing that all such
operations will disrupt the environment to some
extent, the policy could deny any sand and gravel
extraction on state aquatic lands. This policy
might, however, unnecessarily limit the industry.

The recommended policy would allow sand and gravel
extraction on aquatic lands, but only when no

MATERIAL EXTRACTION

preferable upland site is available. The definition of
Ifpreferable" will depend on site location, available
transportation routes and material needs. This will
best be judged by local department staff working in
the proposal area.

Oil and Gas

Washington's oil and gas reserves hold discovery
Surface drilling is and production potential. The Oil and Gas
prohibited on state- Conservation Act (RCW 78.52) regulates mining of
owned aquatic lands. oil and gas on publicly and privately owned uplands
and aquatic lands statewide. The Act and imple-
menting regulations are administered by the depart-
ment's Division of Geology and Earth Resources. A
separate law, RCW 79.14 authorizes the department
to lease state-owned aquatic lands and uplands for
oil and gas exploration and drilling. The Lands
Division is currently preparing a program plan and
environmental impact statement to guide implemen-
tation of this law. The program plan may define
policy and standards for exploration or surface
drilling on state-owned uplands in proximity to
aquatic lands.

At the present time, it is not appropriate to allow
surface drilling on state-owned aquatic lands.
Fresh water bodies are small enough that oil and
gas reserves can be tapped by directional drilling.
The Shoreline Management Act prohibits surface
drilling for oil and gas in and within 1,000 feet
of Puget Sound and the Strait of Juan De Fuca.
Because there is no statewide policy on offshore
drilling it is premature to consider such drilling.

GLOSSARY

GLOSSARY -

Aquaculture - Farming of food fish, shellfish and other aquatic plants and animals.

Aquatic Land Ownership - The state asserts its ownership to the beds and shores
of all navigable waters up to and including the line of ordinary high tide
(mean high water) in waters where the tide ebbs and flows and up to and
including the line of ordinary high water within the banks of all navigable
rivers and lakes (Article XVII, Section 1, State Constitution).

Beds of Navigable Waters - Submerged lands lying below the line of extreme low
tide in navigable tidal waters; and below the line of navigability in lakes,
rivers and streams. tinder the laws of the United States, navigable waters have
always been and shall forever remain common highways. Bedlands is synonymous
with beds of navigable waters.

UpAbility or Susceptibility of Use for Commerce - A criteria for a body of
water to be considered navigable. It refers to physical characteristics
(capability) and geographical setting (susceptibility) that would allow the body
of water to be used for transportation by watercraft common to the locality.

Dredging - Enlarging or clearing a river channel, harbor, etc., for navigational
purposes or to remove sand and gravel.

Extreme Low Tide - The line below which the tide would not be expected to ebb.
In the Puget Sound area, generally, this point is estimated to be about 4.5 feet
below the datum plane of mean lower low water (0.0); along the Pacific coast and
the Strait of ~Juan de Fuca, it is somewhat lower.

Extreme Low Water - In areas unaffected by tidal influence, it is the line of
lowest (extreme) water level or flow of record.

Federal Navigational Servitude - All navigable waters are under the control of
the United States for the purpose of regulating and improving navigation, and
although the title to the shore and submerged soil is in the various states and
individual owners under them, it is always subject to the servitude in respect
of navigation created in favor of the Federal Government by the Constitution.

First Class Shorelands - State-owned lands bordering the shores of navigable
rivers and lakes between the line of navigation and the line of ordinary high
water and lying within or in front of the corporate limits of any city or within
two miles of the limits.

First Class Tidelands - Lands lying within or in front of the corporate limits
of any city or within one mile thereof and between the line of ordinary high
tide and the inner harbor line; or within two miles of the corporate limits and
between the line of ordinary high tide and the line of extreme low tide.

Harbor Area - The area of navigable waters between the inner and outer harbor
lines as established by the State Harbor Lines Commission in accordance with pro-
visions of the State Constitution. The right to place improvements upon this area
may he leased from the State of Washington.

Harbor Lines - Outer harbor line means a line located and established in navi-
gable waters beyond which the state shall never sell or lease any rights. Inner
harbor line means a line located and established in navigable tidal waters be-
tween the line of ordinary high tide and the outer harbor line and constituting
the landward boundary of the harbor area.

Interagency Openwater Disposal Site Evaluation Committee - This committee was
established by WAC 332-30-166. Its membership is currently composed of the state
Departments of Ecology, Fisheries, Game and Natu.ral Resources as well as the
Federal Army Corps of Engineers, National Marine Fisheries Service, Environmental
Protection Agency and Fish and Wildlife Service.

Interim Nonconforming Use - An activity not authorized within harbor areas by
the State Constitution, but permitted when it will not intefere with the needs
of navigation and commerce.

Intertidal - Lands over which the tide ebbs and flows.

Marine Lands - Lands measured on a horizontal plane from the ordinary high water
mark waterward in marine and estuarian waters, including tidal lands.

Mean High Water - The average of all high water elevations reached at a given
point over a designated period of time.

Mean Low Water - The average of all the low water elevations reached at a given
point over a designated period of time.

Mean Lower Low Water - The average of lower water elevations of each pair of low
waters of a tidal day. All other tidal elevations are based on this datum.

Meander Line - Fixed, determinable lines running along the banks of all navi-
gable bodies of water and other important rivers and lakes for the purpose of
defining the curves of the shore or bank and as a means of ascertaining the
areas of fractional subdivisions of bordering public lands.

Navigability - All bodies of water meandered by government surveyors are con-
sidered by the state to be navigable unless otherwise declared by a court.
Court decisions have determined that waters are navigable if used for the
general purposes of commerce and not those which are merely public highways for
floating logs; that waters are navigable regardless of size; and that tidal
water is navigable even if it is navigable only at high tide.

Renewable Resource - A resource capable of self-renewal.

Reserves - An area of special educational or scientific interest or utility, or
an area of special environmental importance. Education reserves are accessible
areas which are suitable for classroom projects. Scientific reserves are areas
of environmental importance or historical, geological or biological interest
which are threatened by overuse and require special protective management.

Second Class Shorelands - State-owned lands bordering the shores of navigable
lakes and rivers between the line of navigability and the ordinary high water
mark and located more than two miles from the corporate limits.

Second Class Tidelands - The area outside of and more than two miles from the
corporate limits of a city or town, extending from the ordinary high tide line
to the line of extreme low tide.

Subtidal - Lands lying below extreme low water or beyond the reasonable limits
of an ebb tide.

Upland Access - Those portions of upland ownership that allow or provide direct
interface with aquatic lands.

Upland Ownership - Lands abutting tidal waters or lakes extending fron the
meanider line or high water mark (which ever is higher) landward, for lands
patented prior to statehood in 1889; or from the line of mean high water land-
ward, for lands patented after statehood.

Use Authorization - The legal documentation process of allowing specific activi-
ties to occur on public aquatic lands.

Water Dependency - THe inability to logically exist in any location but on the
water.

Waterways - An area platted across harbor areas providing for access to open
water.

APPENDICES

APPENDIX A
DNR AUTHORITIES FOR APPROVING AQUATIC AREA USE

Authorized Uses Categories of State Aquatic Lands

Beds of 2nd Class Platted Unplatted Harbor
Navigable Tidelands 1st Class 1st Class Area
Waters Tidelands, Tidelands,
Shorelands Shorelands

ROC RI W MC W RCW FRCW
General Purpose 79.95.0101 SSHR 12312 SSHB 12312 79.94.2803 79.02.0404

Booming 79.95.0105 79.94.2906 79.94.2807

Shellfish Cultivation 79.96.010
and Aquaculture

Geoduck 75.24.1008
Harvesting 79.96.080

Valuable Minerals 79.01.616 79.01.616 79.01.616 79.01.616 79.01.616
Prospecting and Mining

Oil and Gas Prospecting, 79.14.020 79.14.020 79.14.020 79.14.020 79.14.020
Development and Production

Rock, Stone, Gravel, Sand 79.90.130 79.90.130 79.90.130 79.01.130 79.90.130
or Silt Removal 79.90.300 79.90.300 79.90.300 79.90.300 79.90.300

Natural Area Preserves 79.70.040 79.70.040 79.70.040 79.70.040

1 Beds may be leased to the abutting tideland owner or lessee for general purposes not
covered under the other authorities.
2 Second Substitute House Bill No. 1231, 1984, Section 3(4).

3 Unplatted 1st Class Tidelands may be leased to the abutting upland owner for general pur-
poses not covered under the other authorities.
4 The lease of beds within harbor areas must be in conformance with the State Constitution.
Article XV states harbor areas are to be reserved for landings, wharves, streets and
other conveniences of navigation and commerce.

5 Beds may be leased to any person, firm or corporation for booming purposes, but only if
the abutting tidelands and uplands are not improved or occupied for residential or comn-
mercial purposes.
6 Any 2nd Class Tidelands may be leased for hocoming purposes except any oyster reserve
containing oysters in merchantable quantities.
7 Unplatted 1st Class Tidelands may be leased to any person, firm or corporation for
booming purposes, but only if the abutting uplands are not improved and occupied for
residential purposes and the abutting upland owner has not filed an application for the
lease of such lands.
8 Beds authorized for geoduck harvesting must lie below the minus 18-foot tide level and
more than 200 yards offshore from mean high tide.

A-1

,,m ~~:~.~, ,:...::,,.:y~;-,APPENDIX B ' ...... SECOND SUBSTITUTE HOUSE BILL NO. 1231
__g ~ ~ ~ ~ ~ ~ =~~ - - -~~ ~ wState of Washington 48th Legislature 1984 Regular Session

by Committee on Ways & Means (originally sponsored by Representatives
Xof the aBelcher, Wilson, Stratton, Sayan, Miller, Locke, Mitchell, Halsan,
Ah11-s-1 I~~~~~ ~ ~ ~ ~~~~~~~~ ~McClure, Fiske, Vekich. McMullen, Sommers, Sutherland, Haugen,
0V IVLSIIIfv~ Jo Or* t X^ ^ ff XNiemi, Burns and Powers)

Read first time February 23, 1984.
?a'

I1 AN ACT Relating to aquatic lands; amending section 83, chapter

g j -t ~~~~~~.- >/ 2 21, Laws of 1982 1st ex. sess. and RCW 79.93.040; amending section

3 85, chapter 21, Laws of 1982 Ist ex. sess. and RCW 79.93.060;
4 amending section 79, chapter 21, Laws of 1982 1st ex. sess. as last

CERTIFICATION OF ENROLLED ENACTMENT 5 amended by section 1, chapter 153, Laws of 1983 and RCW 79.92.110;
~Lg~~~~~~~~~ ~=~~~~~-:~ ~6 amending section 9, chapter 167, Laws of 1961 as last amended by

SECOND SUBSTITUTE HOUSE BILL NO....... 7 section 4, chapter 8, Laws of 1982 2nd ex. sess. and RCW 79.24.580;
~g~~ ! 18 adding new sections to chapter 79.90 RCW; adding a new section to

9 chapter 79.93 RCW; creating new sections; decodifying RCW 79.96.900;
CHAPTER NO............
~| ~ . .. .e10 repealing section 1, chapter 93, Laws of 1917 and RCW 53.32.010;

14 , . . ...........~~~~~. iU~~~ . 11 repealing section 2, chapter 93, Laws of 1917 and RCW 53.32.020;

X..: '~~ .12 repealing section 3, chapter 93, Laws of 1917, section 3, chapter 72,

g t~ . . .a13 Laws of 1979 and RCW 53.32.050; repealing section 5, chapter 93, Laws

~JiQ . . . . . . . . ?...... -Q--s ~'~~~) .14 of 1917 and RCW 53.32.060; repealing section 4, chapter 93, Laws of

~-~f ~ ~ . . . 15 1917 and RCW 53.32.070; repealing section 6, chapter 93, Laws of 1917

A ...... g16 and RCW 53.32.900; repealing section 72, chapter 21, Laws of 1982 1st
; Possed thHaae4.t.Y... 1................................
Pa~ssed the Hou.~e~~ ...........-~ E1X17 ex. sess. and RCW 79.92.040; repealing section 73, chapter 21, Laws

Yeas .95.. Nays. .. 18 of 1982 Ist ex. sess. and RCW 79.92.050; repealing section 103,

Psssedthegeaate 8..a. 19-84 19 chapter 21, Laws of 1982 1st ex. sess. and RCW 79.94.180; repealing
!in- ase ahemenated Mac 8-:--6
as amended 20 section 104, chapter 21, Laws of 1982 1st ex. sess. and RCW
'Yeas ........4. Nays ...2 .
J-Z S ~ . .A21 79.94.190; repealing section 105, chapter 21, Laws of 1982 1st ex.
.... ~~~~~CERTIFICATION /_
A-,- 3-8-84: The House CERTIFICATION 22 sess. and RCW 79.94.200; and providing an effective date.
concurred in the
M n t condmred nth I, Dean R. Foster, Chief Clerk of the House of
S! enate amendment
and passed the bill ePeoentatpeeiWs of .d the Stat eeofbost do 23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
cetnify that the Ste Hase Bri l

: Yeas: : l folth
as mndebyteNI 'I- passed byt h H.s ofY'~
Sente R-.t . - - et~ta theatcds nrote d. thettute$Hou-rsetd

,(?<M^,7Ew~t~~~ _9~~ \m~ , /=/t/ f �25 aquatic lands are a finite natural resource of great value and an
DEAN FOST. Chief Clk 26 irreplaceable public heritage. The legislature recognizes that the

27 state owns these aquatic lands in fee and has delegated to the
Rersett~e28 department of natural resources the responsibility to manage these

29 lands for the benefit of the public. The legislature finds that

aim-~" -- DEAN R_ TIdC B-1 . 2SHB 1231
~~~~~~4~~~~2 irrpaeabl ulic ei a e Telgsaturieogn izsta h

See. I See. 4

1 water-dependent industries and activities have played a major role in Ipriority use providing minimal public benefits and shall not be

2 the history of the state and will continue to be important in the 2 permitted to expand or be established in new areas except in

3 future. The legislature finds that revenues derived from leases of 3 exceptional circumstances where it is compatible with water-dependent

4 state-owned aquatic lands should be used to enhance opportunities for 4 uses occurring in or planned for the area.

5 public recreation, shoreline access, environmental protection; and 5 (3) The department shall consider the natural values of state-

6 other public benefits associated with the aquatic lands of the state- 6 owned aquatic lands as wildlife habitat, natural area preserve,

7 The legislature further finds that aquatic lands are faced with 7 representative ecosystem, or spawning area prior to issuing any

8 conflicting use demands. The purpose of sections I through 20 of 8 initial lease or authorizing any change in use. The department may

9 this act is to articulate a management philosophy to guide the 9 withhold from leasing lands which it finds to have significant

10 exercise of the state's ownership interest and the exercise of the 10 natural values, or may provide within any lease for the protection of

Il department's management authority, and to establish standards for 11 such values.

12 determining equitable and predictable lease rates for users of state- 12 (4) The power to lease state-owned aquatic lands is vested in the

13 owned aquatic lands. 13 department of natural resources, which has the authority to make

14 NEWSECTIO. Sec.2. Themanageent ofState-wned auatic14 leases upon terms, conditions, and length of time in conformance with

15 lands shall be in conformance with constitutional and statutory 5tesaeCniuioadchprs790hogh996RW

16 requirements. The manager of state-owned aquatic lands shall strive 1 5 tt-we qai ad hl o elae oproso
17 to rovid a baance f pubic beefitsfor al citzens f the17 organizations which discriminate on the basis of race, color, creed,

IS state. The public benefits provided by aquatic lands are varied and 1 eiin eae rpyia rmna adcp

19 include: 19 NEW SECTION. Sec. 4. The definitions in this section apply

20 (1) Encouraging direct public use and access; 20 throughout chapters 79.90 through 79.96 RCW.

21 (2) Festering water-dependent uses; 21 (1) 'Water-dependent use, means a use which cannot logically

22 (3) Ensuring environmental protection; 22 exist in any location but on the water. Examples include, but are

23 (4) Utilizing renewable resources. 23 not limited to, water-borne commerce; terminal and transfer

24 Generating revenue in a manner consistent with subsections (1) 24 facilities; ferry terminals; watercraft sales in conjunction with

25 through (4) of this section is a public benefit. 25 other water-dependent uses; watercraft construction, repair, and

26 NEW SECTION. Sec. 3. (1) The management of state-owned aquatic 2 aneac;moaeadlucigfclte;auclue o

27 lands shall preserve and enhance water-dependent uses. Water-27boiganpulcfsngiesndar.

28 dependent uses shall be favored over other uses in aquatic land 28 (2) "Water-oriented use' means a use which historically has been
29 plnningand i reslvingconflcts btwee compting ease29 dependent on a waterfront location, but with existing technology

30 applications. In cases of conflict between water-dependent uses,30cudbloaeawyfmthwtrrntExpesildbtae
31 priority shall be given to uses which enhance renewable resources, 3 o iie o odpout auatrnwtrrf aefs

32 water-borne commerce, and the navigational and biological capacity of 3 rcsig erlu eiig adadgae rcsig o

33 the waters, and to state-wide interests as distinguished from local33soaeanhuebat.Frheppssofdemingetudr

34 interests. 34 this chapter, water-oriented uses shall be classified as water-
35 dependent users if the activity either is conducted on state-owned
35 (2) Nonwater-dependent use of state-owned aquatic lands is a low-
36 aquatic lands leased on October 1, 1984, or was actually conducted on

2SHB 1231 -2- B -2 -3- 2S511 1231

Sec. 4 Sec. 6

1 the state-owned aquatic lands for at least three years before October I department shall designate by rule a comparable substitute index.

2 1, 1984. If, after October 1, 1984, the activity is changed to a use 2 (10) "Public utility lines, means pipes, conduits, and similar

3 other than a water-dependent use, the activity shall be classified as 3 facilities for distribution of water, electricity, natural gas,

4 a nonwater-dependent use. If continuation of the existing use 4 telephone, other electronic communication, and sewers, including

5 requires leasing additional state-owned aquatic lands and is 5 sewer outfall lines.

6 permitted under the shoreline management act of 1971, chapter 90.58 6 (11) "Terminal,, means a point of interchange between land and

7 R~CW, the department may allow reasonable expansion of the water- 7 water carriers, such as a pier, wharf, or group of such, equipped

8 oriented use. 8 with facilities for care and handling of cargo and/or passengers.

9 (3) "Nonwater-dependent use,, means a use which can operate in a 9 (12) "State-owned aquatic lands" means those aquatic lands and

10 location other than on the waterfront. Examples include, but are not 10 waterways administered by the department of natural resources or

11 limited to, hotels, condominiums, apartments, restaurants, retail 11 managed under section 6 of this act by a port district. "State-owned

12 stores, and warehouses not part of a marine terminal or transfer 12 aquatic lands" does not include aquatic lands owned in fee by, or

13 facility. 13 withdrawn for the use of, state agencies other than the department of

14 (4) "Log storage- means the water storage of logs in rafts or 14 natural resources.

15 otherwise prepared for shipment in water-borne commerce, but does not

16 include the temporary holding of logs to be taken directly into a 1 E ETO.Sc .Teueo tt-we qai ad o
17 vessel or processing facility. ~ ~ ~ ~ ~16 public utility lines owned by a governmental entity shall be granted

is (5) 'Log booming' means placing logs into and taking them out of 17 without charge by an agreement, permit, or other instrument if the

19 the water, assembling and disassembling log rafts before or after I S use is consistent with the purposes of sections I through 3 of this

20 their movement in water-borne commerce, related handling and sorting 19 act and does not obstruct navigation or other public uses. Use for

21 activities taking place in the water, and the temporary holding of 2 ulcprso ulcrceto upsssalb rne ihu

22 logs to be taken directly into a processing facility. 'Log booming' 21 charge if the aquatic lands and improvements are available to the

23 does not include the temporary holding of logs to be taken directly22gnrlpbionafstcmis-evdbssadaent
24 into a vessel. ~~~~~~~~~~~~~23 managed to produce a profit for the operator or a concessionaire.

25 (6)"Deparment" eans te d e p a tment f natual resurces.24 The department may lease state-owned tidelands that are in front of

26 (7) "Port district" means a port district created under Title 5325saeprsolwihteprvlofhetteaksndecain
26 commission. The department may lease bedlands in front of state
27 RCW.
28 (8)T h e ' e al rae of eturn meansthe aerage or th most27 parks only after the department has consulted with the state parks

29 recent ten calendar years of the average rate of return on28 adrcetocomsin

30 conventional real property mortgages as reported by the federal home 29 NEW SECTION. Sec. 6. Upon request of a port district, the

31 loan bank board or any successor agency, minus the average inflation 3') department and port district may enter into an agreement authorizing

32 rate for the most recent ten calendar years. 31 the port district to manage state-owned aquatic lands abutting or

33 (9) The 'inflation rate,, for a given year is the percentage rate 32 used in ~conjunction with and contiguous to uplands owned, leased, or

34 of change in the previous calendar year's all commodity producer 33 otherwise managed by a port district, for port put-poses as provided

35 price index of the bureau of labor statistics of the United States 34 in Title 53 RCW. Such agreement shall include, but not be limited

36 department of commerce. If the index ceases to he published, the 35 to, provisions defining the specific area to be managed, the term,

2SHB 1231 A4. B-3 '5' 2SHB 1231

See. 6 Sec. 7

l conditions of occupancy, reservations, periodic review, and other I approved by the board of natural resources.

2 conditions to ensure consistency with the state Constitution and the
3 policies of this chapter. If a part district acquires operating2NESCTO.ec7 xepasohriervddbyts
3 chapter, annual rent rates for the lease of state-owned aquatic lands
4 management, lease, or ownership of real property which abuts state-
5 owned aquatic lands currently under lease from the state to a person 4frwtrdpnetue hl edtrie sflos

6 other than the port district, the port district shall manage such (1a)Tesesdlndvuexuieofmpvmnts
7 aqutic lnds i: (1)The prt ditrictacquies th leashold6 determined by the county assessor, of the upland tax parcel used in
8 intrestin acordace wih stte la, or(2) t e c u rent esse and7 conjunction with the leased area or, if there are no such uplands, of

9 the epartent aree t termnationof th currnt lese to8 the nearest upland tax parcel used for water-dependent purposes

10 accommodate management by the port. The administration of aquatic9didebyteprlaeaqusthulndvu.

11 lands covered by a management agreement shall be consistent with the 1 b h padvletmsteae flae qai ad ie

12 aquatic land policies of chapters 79.90 through 79.96 RCW and the 1 hrypreteul h qai advle

13 implementing regulations adopted by the department. The 1 2 so uy1 99 n ahJl hratr h

14 administrative procedures for management of the lands shall be those 1 eatetsaldtrietera aiaiainrt ob ple
15 of Title 53 RCW. ~ ~ ~ ~ ~ ~ ~ ~~~ ~ ~14 to water-dependent aquatic land leases commencing or being adjusted

16 No rent shall be due the state for the use of state-owned aquatic 5udrsbeto(3a)fthsecinntaticlya.Te
17 lads mnagedunde thissecton fo watr-depnden or wter-16 real capitalization rate shall be the real rate of return, except

18 oren t e uses if portdistict mnage stat-ownd aqutic ands17 that until June 30, 1989. the real capitalization rate shall be five

19 under this section and either leases or otherwise permits any person 1 ecn n hratri hl o hneb oeta n

20 to use such lands, the rental fee attributable to such aquatic land 1 ecnaepiti n n ero emr hnsvnpreto

21 only shall be comparable to the rent charged lessees for the same or20lsthnhrepcn.

22 similar uses by the department: PROVIDED, That a port district need 2 3 h nulrn hl e

23 not itemize for the lessee any charges for state-owned aquatic lands 2 a eemndiiily n eeemndeeyfu er ra

24 improved by the port district for use by carriers by water. If a23ohriepvddintelabymtpynghequicad

25 port leases state-owned aquatic lands to any person for nonwater- 2 au ie h elcptlzto ae n

26 dependent use, eighty-five percent of the revenue attributable to the 2 b dutdb h nlto aeec eri hc h eti

27 rent of the state-owned aquatic land only shall be paid to the state. 2 o eemndudrsbeto 3()o hsscin
28 Upo applcatio for manaementagreeent, nd solong s the27 (4) If the upland parcel used in conjunction with the leased area

29 application is pending and being diligently pursued, no rent shall be28 i n o a s e edrhsansesdvluinnitntwhte
30 du thedepatmen forthe easeby th por disrictof sate-wned29 purposes of the lease, the nearest comparable upland parcel used for

31 aquatic lands included within the application for water-dependent or 3 iia upsssalb usiue n h es amn
32 water-oriented uses. ~~~~~~~~~~~31 determined in the same manner as provided in this section.

33 The department and representatives of the port industry shall3 2()Frtepposofhiscin,'ladaxacl'sa

34 develop a proposed model management agreement which shall be used as33txpresmpoinofwchasuldcaatrsis.Fld

35 the basis for negotiating the management agreements required by this 3 i e ad rsoead ihuln hrceitc hc btsae
36 setion The odelmanagmentagrement hallbe reiewe and35 owned aquatic land shall be considered as uplands in determining
36 aquatic land values.

2SHB 1231 -6- 8-4 -7- 2SHB 1231

Sec. 7 Sec. 13

1 (6) The annual rent for filled state-owned aquatic lands that 1 or 8 of this act is more than thirty-three percent below the rent in

2 have the characteristics of uplands shall be determined in accordance 2 effect on September 30, 1984, the annual rent shall not decrease in

3 with section 11 of this act in those cases in which the state owns 3 any year by more than thirty-three percent of the difference between

4 the fill and has a right to charge for the fill. 4 the previous rent and the rent established under section 7 or 8 of

5 this act. Thereafter, notwithstanding any other provision of this
5 NEW SECTION. Sec. 8. (1) Until June 30. 1989. the log storage
6 title, the annual rental established under section 7 or 8 of this act
6 rents per acre shall be the average rents the log storage leases in
7 shall not increase more than fifty percent in any year.
7 effect on July 1, 1984, would have had under the formula for water-
8 This section applies only to leases of state-owned aquatic lands
8 dependent leases as set out in section 7 of this act, except that the
9 subject to section 7 or 8 of this act.
9 aquatic land values shall be thirty percent of the assessed value of

10 the abutting upland parcels exclusive of improvements, if they are 10 NEW SECTION. Sec. 10. If state-owned aquatic lands are used for

11 assessed. If the abutting upland parcel is not assessed, the nearest 11 aquaculture production or harvesting, rents and fees shall be

12 assessed upland parcel shall be used. 12 established through competitive bidding or negotiation.

13 (2) On July 1, 1989, and every four years thereafter, the base
13 NEW SECTION. Sec. 11. Leases for nonwater-dependent uses of
14 log storage rents established under subsection (1) of this section
14 state-owned aquatic lands shall be charged the fair market rental
15 shall be adjusted in proportion to the change in average water-
15 value of the leased lands, determined in accordance with appraisal
16 dependent lease rates per acre since the date the log storage rates
16 techniques specified by rule. However, rents for nonwater-dependent
17 were last established under this section.
17 uses shall always be more than the amount that would be charged as
18 (3) The annual rent shall be adjusted by the inflation rate each
18 rent for a water-dependent use of the same parcel. Rents and fees
19 year in which the rent is not determined under subsection (1) or (2)
19 for the mining or other recovery of mineral or geothermal resources
20 of this section.
20 shall be established through competitive bidding, negotiations, or as
21 (4) If the lease provides for seasonal use so that portions of
21 otherwise provided by statute.
22 the leased area are available for public use without charge part of

23 the year, the annual rent may be discounted to reflect such public 22 NEW SECTION. Sec. 12. If water-dependent and nonwater-dependent

24 use in accordance with rules adopted by the board of natural 23 uses occupy separate portions of the same leased parcel of state-

25 resources. 24 owned aquatic land, the rental rate for each use shall be that

25 established for such use by this chapter, prorated in accordance with
26 NEW SECTION. Sec. 9. For leases in effect on October 1, 1984.
26 the proportion of the whole parcel that each use occupies. If water-
27 the rent shall remain at the annual rate in effect on September 30,
27 dependent and nonwater-dependent uses occupy the same portion of a
28 1984, until the next lease anniversary date, at which time rent
28 leased parcel of state-owned aquatic lard, the rental rate for such
29 established under section 7 or 8 of this act shall become effective.
29 parcel shall be subject to negotiation with the department taking
30 If the first rent amount established is an increase of more than one
30 into account the proportion of the improvements each use occupies.
31 hundred dollars and is more than thirty-three percent above the rent

32 in effect on September 30, 1984, the annual rent shall not increase 31 NEW SECTION. Sec. 13. If a parcel leased for water-dependent

33 in any year by more than thirty-three percent of the difference 32 uses is used for an extended period of time, as defined by rule of

34 between the previous rent and the rent established under section 7 or 33 the department, for a nonwater-dependent use, the rental for the

35 8 of this act. If the first rent amount established under section 7 34 nonwater-dependent use shall be negotiated with the department.

2SHB 1231 -8- B-5 -9- 2SHB 1231

Sec. 14 Sec. 21

1 NEW SECTION. Sec. 14. Except as agreed between the department 1 NEW SECTION. Sec. 16. For any lease for a term of more than one

2 and the lessee prior to construction of the improvements, rent shall 2 year, the department may require that the rent be secured by

3 not be charged under any lease of state-owned aquatic lands for 3 insurance, bond, or other security satisfactory to the department in

4 improvements, including fills, authorized by the department or 4 an amount not exceeding two years' rent. The department may require

5 installed by the lessee or its predecessor before June 1. 1971. so 5 additional security for other lease provisions. The department shall

6 long as the lands remain under a lease or succession of leases 6 not require cash deposits exceeding one-twelfth of the annual rental.

7 without a period of three years in which no lease is in effect or a
7 NEW SECTION. Sec. 17. If the annual rent charged for the use of
8 bona fide application for a lease is pending.
8 a parcel of state-owned aquatic lands exceeds four thousand dollars,
9 If improvements were installed under a good faith belief that a
9 the lessee may pay on a prorated quarterly basis. If the annual rent
10 state aquatic lands lease was not necessary, rent shall not be
10 exceeds twelve thousand dollars, the lessee may pay on a prorated
11 charged for the improvements if, within ninety days after specific
11 monthly basis.
12 written notification by the department that a lease is required, the

13 owner either applies for a lease or files suit to determine if a 12 NEW SECTION. Sec. 18. The lessee shall pay interest at the rate

14 lease is required. 13 of one percent per month on rent or other sums owing to the

14 department commencing thirty days after the date each rent or other
15 NEW SECTION. Sec. 15. The manager shall, by rule, provide for
15 sum is due and payable, unless there is review pending under section
16 an administrative review of any aquatic land rent proposed to be
16 15 of this act.
17 charged. The rules shall require that the lessee or applicant for

18 release file a request for review within thirty days after the 17 NEW SECTION. Sec. 19. The department shall adopt such rules as

19 manager has notified the lessee or applicant of the rent due. For 18 are necessary to carry out the purposes of sections 1 through 18 of

20 leases issued by the department, the final authority for the review 19 this act, specifically including criteria for determining under

21 rests with the board of natural resources. For leases managed under 20 section 7(4) of this act when an abutting upland parcel has been

22 section 6 of this act, the final authority for the review rests with 21 inappropriately assessed and for determining the nearest comparable

23 the appropriate port commission. If the request for review is made 22 upland parcel used for water-dependent uses.

24 within thirty days after the manager's final determination as to the
23 NEW SECTION. Sec. 20. Nothing in this chapter or RCW 79.93.040
25 rental, the lessee may pay rent at the preceding year's rate pending
24 or 79.93.060 shall modify or affect any existing legal rights
26 completion of the review, and shall pay any additional rent or be
25 involving the boundaries of, title to, or vested property rights in
27 entitled to a refund, with interest thirty days after announcement of
26 aquatic lands or waterways. Nothing in this chapter shall modify,
28 the decision. The interest rate shall be the average rate of return
27 alter, or otherwise affect the applicability of chapter 90.58 RCW.
29 for the prior calendar year on conventional real property mortgages

30 as reported by the federal home loan bank board. Nothing in this 28 Sec. 21. Section 83. chapter 21, Laws of 1982 1st ex. sess. and

31 section abrogates the right of an aggrieved party to pursue legal 29 RCW 79.93.040 are each amended to read as follows:

32 remedies including those under chapter 34.04 RCW. For purposes of 30 ((WheneveF;-in-any-waleFways--ereated--endeer--the--laws--ef-.this

33 this section, 'manager" is the department except where state-owned 31 state;)) If the United States government ((shall--have)) has

34 aquatic lands are managed by a port district, in which case "manager" 32 established pierhead lines within ((said)) a waterway created under

35 is the port district. 33 the laws of this state at any distance from the boundaries

34 ((thereof)) established by the state, structures ((shall--be--allewed

2SHB 1231 .10. B-6 -11- 2SHB 1231

Sec. 21 Sec. 22

1 to)) may be constructed in that strip of waterway between the 1 state--treasurer--te--the-eeunty-treasurer-ef-Ihe-eeunty-wherein-sueh

2 waterway boundary and the nearest pierhead line ((but)) only ((upon)) 2 port-distriet-is-situatedT-fer-the-use--ef--said--peot--dissriet--and

3 with the consent of the department of natural resources and upon such 3 twenty-five-peFeent-inte-the-saate-treasuryi--PRQVIDED;-That-in-eases

4 plans, terms, and conditions and for such term as ((appreved--and 4 where--the--pert-dissriec-itself-shall-have-eenstruezed-er-shall-have

S fixed)) determined by the department. However, no permit shall 5 ewned-struetures-er-improvements-situated-upen-sueh-strip-ef-waterway

6 extend for a period longer than thirty years. 6 sinee-June-22;-1913;-the-entire-reatals-fer-seeh--impreved--strip--ef

7 ((The-department-sha11-require-of--the--helder--of--every--permit 7 waterway--shal--hbe-paid-direetty-to-the-eeunty-treasurer-for-the-use

8 under--this--seetien--a.-penalty--bend--with-suffieient-surety;-te-be 8 ef-sueh-peot-distriet)) as provided in section 6 of this 1984 act.

9 appreved-by-the-department;-in-an--ameunt--noe--exeeeding--twiee--the 9 Nothing in this section shall confer upon, create, or recognize

10 ameunt--ef--the--annual-rental;-but-in-ne-ease-less-than-five-hundred 10 in any abutting owner any right or privilege in or to any strip of

11 dellars,--The-bend-shall-seeure-the-payment-ef-the-renta1-reserved-in 11 waterway abutting any street and between prolongations of the lines

12 the-permit;-during-the-term--ef--sueh--permit- -er--during--seh--part 12 of such street, but the control of and the right to use such strip is

13 thereef--as--said--department--in--its-diseretieo-shall-require-te-be 13 hereby reserved to the state of Washington, except ((that-in-eases

14 eevered-by-sueh-bend --n-ease-enly-a-part-ef-the-term-ef-sueh-permit 14 situate-in-a-peFt-distriet-sueh-eentrel -and-use-shall- -vest-- in--sueh

15 shall-be-eevered-rhereby;-the-department-shall-require--another--like 15 pert-distriet)) as authorized by section 6 of this 1984 act.

16 bend;--te--be-exeeuted-and-delivered-within-three-menths-and-net-1ess
16 Sec. 22. Section 85, chapter 21. Laws of 1982 1st ex. sess. and
17 than-ene-menth-prier- te-the-expiration-ef - the-peFied-eevered- -by- - the
17 RCW 79.93.060 are each amended to read as follows:
18 previeus--bend;.-te-eever-the*remainder-ef-the-term-ef-the-permita-or
18 ((Whenever-any)) If a waterway established under the ((authority
19 sueh-part-thereof-as-the-department-in-its-diseretion--sha1*--require
19 of-the)) laws of this state, or any portion of ((sueh)) the waterway,
20 te--be--eevered*thereby,--The-department-sha11-have-pewer-at-asny- tiime
20 ((shall)) has not ((have)) been excavated, or ((shall-net-be-in-use))
21 to-summen-sureties-upen-any-bend-and-te-examine- into-the- -suffieieiey
21 is not used for ((the-purposes-of)) navigation, or ((shall-eno-longer
22 of- -the--bond;--and--if- -the--department- -shall--find- -the-sane-to-be
22 be)) is not required in the public interest to exist as a waterway,
23 insuffieient; - it-shall -require-the-helder-of-the-permit-to-file-a-new
23 such waterway or portion thereof may be vacated by written order of
24 asd-suff iienit-bend-within-thirty-days-after-reeeiving-netiee- - et- -de
24 the commissioner of public lands ((of--the--state--ef--Washington
25 se; -under-penalty-ef -eaneel latien-ef-the-peraitd))
25 whenever--he--shall--be)) upon request((ed-se-te-de)) by ordinance or
26 The department ((sha11--have-po wer- pon-sixty-days!-netiee-te))
26 resolution of the city council of the city in which such waterway is
27 may cancel any permit upon sixty days' notice for a substantial
27 ((situate;-in-whele-er-in-part;-er;-in-ease-sueh-waterway-is-situate;
28 breach by the ((holder--thereof)) permittee of any of the permit
28 in- -whole- -or-in-part;- in-a-port-district-organized-under-the-tlaws-of
29 conditions((thereef,-er-for-laek-ef-a-bond-therewith-as--require--by28
29 the-state-of-Washingten;-whenever-he-shall-be-requested--se--te--de))
30 this-seetien)).
31 ((In--easefsj--where-sueh)) If a waterway((s-shall-be)) is within 30 located or by resolution of the port commission of ((sueh)) the port
31 distri'ct((~-and-upon-the-m~aking-of-sueh-erder-the-waterway-er-portlen
32 the territorial limits of a port district ((erganized-under-the--laws 31
32 thereeof-shall-thereupon-be-deemed-te-be-and-shall-be-thereby-vaeated;
33 ef--this--state)), the duties assigned by this section to the
33 PROVIQED;-4OWEVER;-That)) in which the waterway is located. If the
34 department ((shall)) may be exercised by the port commission of such
~35 port dtrc(--n-i-eey-a-hrealreeedh -b34 waterway or portion thereof ((se)) which is vacated ((be)) is
35 port 'district((;--and--in--every--ease-the-ren~tas-reeeived-shatt-be
35 navigable water of the United States, or otherwise within the
36 dispesed-ef-as-fuoiewsf--Seventy-five-pereent-shall-be--paid--by--the
36 jurisdiction of the United States, a copy of such resolution or
2SHB 1231 -12- B-7 -13- 2SHB 1231

Sec. 22 Sec. 25

1 ordinance, together with a copy of ((said)) the vacation order of the 1 section to read as follows:

2 commissioner of public lands ((seFtified.-te--hy--him;)) shall be 2 Copies of waterway permits or leases in existence on the

3 submitted to the United States Army Corps of Engineers for their 3 effective date of this act shall be delivered to the department of

4 approval, and if they approve, the ((same-sueh)) waterway or portion 4 natural resources except in those cases in which the port district

5 thereof ((shatt-ihereepe-be-deemed-te-be-and-shatt-he-theFeupen)) is 5 enters into an agreement authorizing management of state-owned

6 vacated: PROVIDED, That if a port district owns property abutting 6 aquatic land as provided in section 6 of this act.

7 the waterway and the provisions of this section are otherwise
7 Sec. 24. Section 9. chapter 167, Laws of 1961 as last amended by
8 satisfied, the waterway, or the portion thereof that abuts the port
8 section 4, chapter 8, Laws of 1982 2nd ex. sess. and RCW 79.24.580
9 district property, shall be vacated.
9 are each amended to read as follows:
10 Upon such vacation ((eeeFFing;--in--eitheF--ef--the- --manners
10 After deduction for management costs as provided in RCW 79.64.040
11 aferesaid;)) of a waterway, the commissioner of public lands shall
11 and payments to towns under RCW 79.92.110(2), all moneys received by
12 notify the city ((within;-er-in-frent-ef;)) in which((;--such)) th__e
12 the state from the sale ((ef-tidelands;-and-sheretands;)) or lease of
13 waterway is located, and the city ((shall-have)) has the right, if
14 ohriepritdb79915texedarsthpotos13 state-owned aquatic lands and from the sale of valuable material from
14 otherwise permitted by RCW 79.94.150, to extend across the portions
14 ((tidetan~ds;--sherelands;--beds--ef-navigabte-waters-and-harbeF-aFeas
15 so vacated any existing streets, or to select ((therefrem)) such
15 and-frem-the-iease-ef-sheretan~ds--and--heds--ef--navigabte--wateFs;))
16 portions ((thereef)) of the waterway as the city may desire for
16 state-owned aquatic lands shall be distributed as follows: (1) Forty
17 street purposes, in no case to exceed one hundred fifty feet in width
17 percent shall be deposited in the aquatic lands enhancement account
18 for any one street. Such selection shall be made within sixty days
18 of the general fund which is hereby created. After appropriation,
19 subsequent to the receipt of notice of the vacation of the portion of
19 these funds shall be used solely for aquatic lands enhancement
20 the waterway ((se-vaeat'ed)).
20 projects; for the purchase, improvement, or protection of aquatic
21 ((Sheuld-sueh)) If the city fails to make ((such)) a selection
22 within such time, or selects 21 lands for public purposes; for providing and improving access to such
22 within such time, or ((within-sueh-time-make-sueh-seleetien)) selects
22 lands; and for volunteer cooperative fish and game projects: and (2)
23 only a portion of the waterway, the title of the remaining portions
23 the remainder shall be deposited in the capitol purchase and
24 of ((such)) the vacated waterway ((se-vaeated)) shall vest in the
24 development account of the general fund, the creation of which is
25 state, unless the ((same-be-situate)) waterway is located within the
25 hereby authorized or, in the event that revenue bonds are issued as
26 territorial limits of a port district ((ereated-under-the-taws-ef-the
26 authorized by RCW 79.24.630 through 79.24.647, into the state
27 state)), in which event, if otherwise permitted by RCW 79.94.150,
27 building bond redemption fund pursuant to RCW 79.24.638.
28 ((sueh)) the title shall vest in ((said)) the port district. ((If

29 swhseuent.te-sweh-vaeatie--the--vaeated--wateFway--eF--pertien--ef 28 Sec. 25. Section 79, chapter 21, Laws of 1982 1st ex. sess. as

30 waterway--shatt--be--emhraeed--within--the--timits-ef-a-pert-distriet 29 last amended by section 1, chapter 153, Laws of 1983 and RCW

31 ereated-under-the-taws-ef-the--state;--the--titte--te--sueh--ertiens 30 79.92.110 are each amended to read as follows:

32 thereef-as-shatt-then-Femain-undispesed-ef-by-the-state-shatt-vest-in 31 ((The-rents-paid-under-.teases--ef--harher--areas--and--tidetands

33 sueh-pert - -distriet,---Sueh-tittle-se-vesting-shall-be)) The title is 32 belenging-te-the-state-ef-Washingt;-where-net-otherwise-diFeeted-te

34 subject to any railroad or street railway crossings existing at the 33 a-partieutar-aeeeunt;-shatt-he-dispesed-af-as-feltews{

35 time of such vacation. 34 (t)--Exeept--as--etherwise--previded--in--this-seetienT-where-the
35 eased-harher-area-er-tidetand- is- -situated- -within- -the- -territerial
36 NEW SECTION. Sec. 23. There is added to chapter 79.93 RCW a new

2sHfB 1231 .14- -15- 2SHB 1231

Sec. 25 Sec. 30
Sec. 30

1 limits--of--a--port--distriet--twenty-five--pereent--of--the-rentals I or-towns;-as-the-ease-may-bev)) towns on the first days of July and
~~~~~~~~~~~~~~~~~~~~~~1 e-os-a-ees-aye))towns'on the first days of July and
2 reeeived-from-sweh-leases-shall-he-paid-by-the-stste-treaswrer-to-the 2 January of each year, of all moneys ((in-his-hands-oH-sweh-dates))

3 eounty-treasurer-of-the-eounty-wherein-sueh-port-distriet-is-situated 3 payable under the terms of this section ((to--sueh--pert--distriet;

4 fer-the-use-of-sueh-pert-distriet-and-said-rentsl--shall--ge--into--a 4 eounties;-or-towns-respeetiveiy)).
~~~~~~~~~~~~~~~~~~~~~~~4 e4~is-rtws-epeiey)
5 speeial-fwnd-te-be-expended-enly-fer-harber-or-waterfront-imprevemeRt
~6 purposes.~---The~--remin -sevety-fiv-pern-sh -dpoted-i 5 NEW SECTION. Sec. 26. The department of natural resources may
6 purposes,---The--remaining-seve~ty-five.@ereealt-shatt-be-depesited-ia
7 the-eapitol-purehase-and-development-aeeount-of-the-general--fund--of 6 enter into agreements with the department of fisheries for the

8 the--state-treasury;--PRQVIPED;-That-in-eases-where-the-port-distriet 7 development of an intensive management plan for geoducks including

9 itself-shsll--have--before--April--28;--1987;--eenstruesed--or--owned 8 the development and operation of a geoduck hatchery.
~10 stutrs-o-ipoemns-iuteuo-h-Iae-so-ra-r9 The department of natural resources shall evaluate the progress
10strueteres--er--imprevem~eats--situate-upea-the-teased-harker-area;-er
11 tidelands;-the-entire-rentals--from--sueh -improved--harbor--area- -r 10 of the intensive geoduck management program and provide a written

12 tideland--shall--go--to--the--port--distriet;--PRQVIDED-FURThER;-Thst 11 report to the legislature by December 1, 1990, for delivery to the

13 whenever-the-port-distriet-shall--after--April--28;--l9677--construct 12 appropriate standing committees. The evaluation shall determine the

14 improvements--on--such--leased--harbor--area-or-tidelands;-the-rensal 13 benefits and costs of continued operation of the program, and shall

15 attributable-to-sueh-improvements-shal-go-to-the-port-district. 14 discuss alternatives including continuance, modification, and

16 (2)-In-all-ether-eases-twenty-five-peFeent-of-the-rents-shail--be 15 termination of the intensive geoduck management program.

17 paid-hy-the-state-treasurer-into-the-county-treaswry-of-the-county-in 16 NEW SECTION. Sec. 27. The department of natural resources shall

18 which--the--leased-hsrhor-area-or-tidelands-sre-situated -the-same-to 17 evaluate the progress of the seaweed aquaculture program and provide

19 go-into-a-speeisl-fund-known-ss-the-0harbor-improvement-fund~;-and-to 18 a written report to the legislature by December 1, 1987, for delivery

20 be-dishrsed-enly-for-harbor-or-harbor-improvement-purposest-and--the 19 to the appropriate standing committees. The evaluation shall

21 remaining--seventy-five--percent--shall--be--deposited-in-the-capitol 20 determine the benefits and costs of continued operation of the

22 purchase-and-development-account-of-the-genwral--fund--of--the--state 21 program, and shall discuss alternatives including continuance,

23 treasury*--PROVIDED;-That-wheFe-any-leased-harbeF-area-eF-tideland-is 22 modification, and termination of the seaweed aquaculture program.

24 situated--within--the--limits--of--any--incorporated--city-and-is-not 23 The expenditure of state funds for seaweed aquaculture shall, after

25 embraced-within-the-area-of-any-port-district;-thw--legislstive--hody 24 June 30, 1989, be linited to those funds received pursuant to RCW

26 of--the--county--shall--allocate--the--funds--received-from-the-lease 25 79.64.040 which are derived from commercial seaweed leases of state

2v thereef-to-the-municipal-authorities-of-such-eity;-to-he-expended--by 26 aquatic lands, unless otherwise expressly provided by law.
28 said---autherities--fer--harber--er--waterfrent--prpeses*---PROVIDED
29 FURTHERv-That)) (1) Where any leased harbor area or tideland is 27 NEW SECTION. Sec. 28. Sections 1 through 20 of this act are
28 each added to chapter 79.90 RCW.
30 situated within the limits of a town, whether or not the harbor area 28 each added to chapter 79.90 RCW.

31 or tideland lies within a port district, the rents from such leases 29 NEW SECTION. Sec. 29. RCW 79.96.900 is decodified.

32 shall be paid by the state treasurer to the municipal authorities of
33 the town to be expended for water-related improvements. 30 NEW SECTION. Sec. 30. The following acts or parts of acts are

34 (((3))) (2) The state treasurer is hereby authorized and directed 31 each repealed:
35 to make ((sh)) payments to the respective 32 (1) Section 1, chapter 93, Laws of 1917 and RCW 53.32.010;
35 to make ((sueh)) payments to the respective ((eeuaty--treasurers--a~d
36 municipal--authorities--for-the-use-of-such-port-districts;-counties; 33 (2) Section 2, chapter 93, Laws of 1917 and RCW 53.32.020;
34 (3) Section 3, chapter 93, Laws of 1917, section 3, chapter 72,
2SHB 1231 -16- B-9 -17- 2SHB 1231

Sec. 30

1 Laws of 1979 and RCW 53.32.050:

2 (4) Section 5, chapter 93, Laws of 1917 and RCW 53.32.060;

3 (5) Section 4, chapter 93, Laws of 1917 and RCW 53.32.070:

4 (6) Section 6, chapter 93, Laws of 1917 and RCW 53.32.900;

5 (7) Section 72. chapter 21, Laws of 1982 1st ex. sess. and RCW

6 79.92.040;

7 (8) Section 73, chapter 21, Laws of 1982 1st ex. sess. and RCW

8 79.92.050:

9 (9) Section 103, chapter 21, Laws of 1982 1st ex. sess. and RCW

10 79.94.180;

11 (10) Section 104, chapter 21, Laws of 1982 1st ex. sess. and RCW

12 79.94.190; and

13 (11) Section 105, chapter 21, Laws of 1982 1st ex. sess. and RCW

14 79.94.200.

15 NEW SECTION. Sec. 31. If any provision of this act or its

16 application to any person or circumstance is held invalid, the

17 remainder of the act or the application of the provision to other

18 persons or circumstances is not affected.

19 NEW SECTION. Sec. 32. This act shall take effect on October 1,

20 1984.

Passed se Marc 984 .

p /aof ~h ouse.

Passed the Senate March 8, 1984.

jesient of the Senate.

2SHB 1231 -18- B-1 0

APPENDIX C
FEDERAL, STATE AND LOCAL INTERESTS IN AQUATIC LANDS -
AN OVERVIEW1

ISSUES

The major laws governing aquatic land use at all levels of government (federal,
state, local) concern the following issues:

Public Use and Enjoyment. Protection of the public's right to use and
enjoy aquatic areas.
Fish and Wildlife. Recognition of the values provided hy fish and wildlife
and reduction of habitat dispruption. Special emphasis is put on marshes,
swamps, tideflats, estuaries and riparian zones.

Navigation. Recognition of the need to prevent impediment of commerce on
the navigable waters of the nation. This role at the federal level is
split between the U.S. Army Corps of Engineers and the U.S. Coast Guard and
is largely based on the Commerce Clause of the Constitution.
Water Quality. Restoration and maintenance of the chemical, physical and
biological integrity of the nation's waters.

Federal Government

The federal government has expressed its management concerns in the following laws2:

Marine Protection, Research and Sanctuary Act (PL 92-532)
Estuary Protection Act (P.L. 90-454)
National Environmental Policy Act of 1969 (P.L. 90-454)
Coastal Zone Management Act (P.L. 92-538)
Federal Water Pollution Control Act, as amended (P.L. 92-500)
Fish and Wildlife Coordination Act (16 USC Sec. 661 et seq.)
Endangered Species Act (P.L. 93-205)
Rivers and Harbors Act of 1889 (33 USC 403)

The federal government plays a major role in reviewing aquatic land projects. A
project must comply with federal agency reviews which may include the U.S. Corps
of Engineers National Marine Fisheries Service, U.S. Fish and Wildlife Service,
and the Coast Guard. (The last three agencies have review powers during Corps
review.)

1 This appendix is meant to he an aid in understanding the multiagency manage-
ment of aquatic lands. It is by no means a complete set of laws, duties or
functions for these agencies.

2 For detail on the intents of these laws, see Coastal Aquatic Management Policies
of Washington State and Federal Agencies, DOE Report 80-8.

C-1

State and Local Government

State and local governments have the same range of interests regarding aquatic
lands as the federal government, but view these concerns from a statewide
perspective in the context of a Shoreline Master Plan or local zoning ordinance.

Numerous techniques and methods are employed by state and county agencies to
insure that aquatic land development meets the requirements defined in their
respective programs. Some of theses control methods stem from historical modes
of authority (e.g., health, zoning). Other methods have recently been created,
such as the Shoreline Management Act (SMA) and the State Environmental Policy
Act (SEPA). Local governments also have significant permitting powers granted
under the state SMA. The Act gives the local government extensive power to
determine what developments will occur on local shorelands and adjoining areas.

FEDERAL AGENCY REGULATORY ACTIVITIES ON AQUATIC LANDS3

Through a variety of laws (see previous discussion) the federal government has
extensive review powers over aquatic land proposals. The following agencies
are involved to some extent:

U.S. Army Corps of Engineers (Corps) - Section 10 of the Rivers and Harbors
Act of 1899 is administered by the Corps to regulate structures and work in
navigable waters of the U.S. The law prohibits the "unauthorized obstruction
or alteration of any navigable water in the U.S." Any proposal that requires a
structure (e.g., raft, pen, pole system, dock, etc.) must obtain a permit.
Under Corps procedures, each permit application is acknowledged by a puhlic
notice and is sent out for federal and state agency review. Each application
is sent to the Environmental Protection Agency, U.S. Fish and Wildlife,
National Marine Fisheries Service and the Washington State Department of
Ecology where state agency responses are compiled and then forwarded to the
Corps. The federal agencies review each project within their authorities and
comment back to the Corps.

The Corps also administers Section 404 of the Federal Water Pollution Control
Act (FWPCA) granting "permits for the discharge of dredged or fill material
into navigable waters at specified disposal sites" The Secretary of the Army,
acting through the Chief of Engineers issues such permits subject to a veto of
use of any specific disposal site hy the EPA Administrator. A permit is not
required for "normal farming, silviculture and ranching activities, such as
plowing, cultivating, seeding, and harvesting, for the production of food fiber,
and forest products . . .

3 Portions of this discussion are adapted from "Regulation of Washington's
Coastal Aquatic Area: A Legal Analysis," an internal DOE report.

4 In addition, Section 10 of the River and Harbor Act of 1899 gives the Corps
jurisdiction to restrict filling or other modification of navigable waters. Any
"[sltructures or work in navigable waters of the United States" require authori-.
zation by the Corps. Although the Corps generally processes Sections 404 and 10
permits concurrently, there are differences in the geographical coverage of the
two acts; Section 404's coverage is broader.

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Although the language of the FWPCA seems to exempt discharges or dredged or
filled material from the National Pollutant Discharge Elimination System
(NPDES), the Washington State regulations implementing the NPDES plan do not, and
specifically include many materials covered by Section 404, including "dredged
spoil" and some common fill materials such as rock and sand. (WAC 173-220-030(7).)
Accordingly, permits are required under both federal and state law for many
discharges of dredged and fill material.

While the Corps process is the formal start of reviews, applicants are encouraged
to contact all of the following agencies prior to project design. This will
bring out potential conflicts early in the design phase and facilitate better
cooperation.

U.S. Coast Guard (USCG) - the USCG reviews the Corps application to insure that
navigation (both commercial and private) will not be impeded by the proposal.
When necessary, USCG requires proper lighting and marking of structures. They
also review for location, traffic and obstruction and add the location of new
structures to navigational charts. The USCG encourages applicants to contact them
directly, thereby getting an early input into project design.

Environmental Protection Agency (EPA) - During the Corps process, the EPA
reviews the proposal for its potential impact on other natural resources.
For example, EPA maintains that aquaculture is potentially a good use of marine
waters, but the agency is concerned that development does not occur at the
expense of other species. EPA comments are sent directly back to the Corps.

National Marine Fisheries Service (NMFS) - During the Corps review, the NMFS
reviews aquatic land use for any adverse impacts on finfish habitats. As a
federal agency, NMFS's role is broader than the state interests and the agency
will view a project in light of regional fish concerns. NMFS will look at the
project as it relates to natural stocks, water quality and habitat impact. The
agency is charged with protecting the nation's fishery interests and safe-
guarding those public resources wherever they may occur. (In cases where part
of a species lifecycle takes it into private or state-owned waters, NMFS main-
tains an interest in the species.)

U.S. Fish and Wildlife Service (USFWS) - With a somewhat broader interest
than NMFS, the USFWS revie-as a Corps application as it relates to the habitat of
many species. USFWS is concerned with waterfowl, plants and animals, as well as
fish. The USFWS makes it comments from national or regional perspective.

STATE AGENCY REGULATORY ACTIVITIES IN AQUATIC LAND USE

Washington State agencies have a significant role in the regulation of aquatic
lands. The following state agencies are most involved: Department of Fisheries,
Department of Natural Resources, Department of Ecology and Department of Social
and Health Services. Other state agencies or groups involved less directly
include: the Department of Game and the Parks and Recreation Commission.
During the review of Corps permits, the Department of Archaeology and Historic
Preservation and the Department of Transportation may review and comment on a
proposal.

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Department of Fisheries (WDF) - WDF has broad authority over all fish and
shellfish (except game fish). The department is concerned with management of
the resources and with personal and commercial uses on a sustained basis.
The department is also concerned that new diseases are not introduced into the
harvest population from new projects. A proposal, depending on the purpose,
will be required to obtain at least some of the following WDF permits:
Clam Harvesting Permit. For mechanical harvesting ($300 per year).
Geoduck Harvesting Permit. Tract license ($100 per year). Also, a diver
is required to have a nontransferable commercial fishing license ($50
per year).
Aquaculture ($100), Clam ($5), or Oyster ($5) Farm Licenses.
Required for the cultivation of food fish and shellfish or other aquatic
animals for commercial purposes.
Hydraulics Project Approval. Issued jointly with the Department of Game,
this approval is required before construction in all surface waters.
Conditions for protection of fish are attached to permit.

Department of Ecology (DOE) - DOE has broad responsibility for a variety of
environmental programs. Included in these are the administration
responsibilities for the Shoreline Management Act (SPIA), the Noise Control Act,
the Coastal Waters Protection Act of 1971 and the State Environmental Policy
Act (SEPA).

With the powers delegated to DOE under these statutes, the agency is involved
in aquatic land management in the following ways:

1. Under the direction of the SMA, the DOE formulated guidelines for devel-
opment of local shoreline master plans, although the primary respon-
sibility for administering the day-to-day regulatory program lies with
the local government.

2. The Noise Control Act dictates that DOE shall adopt maximum noise
levels, taking into consideration local land use policies and programs.
This law has been cited in disputes involving mechanical clam har-
vesters and may be an important consideration for any proposal which
includes a mechanized harvest method.

3. The Coastal Waters Protection Act of 1971 gives DOE the sole respon-
sibility for setting water standards. The law applies to all surface
waters and water courses within Washington jurisdiction. Proposals
must comply with the standards set for water quality in the area.

4. Under the Federal Water Pollution Control Act the department
administers a variety of water programs that include area-wide water
quality planning (Sec. 208); long range allocation planning (Title
III) and sewage treatment plant review and funding (Sec. 201).
Elements in these programs may affect the feasibility of certain
projects especially with regard to water quality.

S. DOE is also the clearing house for all SEPA activities. Proponents
must comply with SEPA requirements before most other required permits
will be handled. For details on this process, see SEPA Guidelines,
revised by DOE in 1984.

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Department of Social and Health Services (DSHS) - The State Board of Health has
certification authority over the shellfish growing areas and shellfish
processing. In the sanitation area, DSHS certifies the shellfish beds in an
attempt to deal with specific concerns over contagious diseases.
Department of Game (WDG) - WDG's jurisdiction does not include species
classified as "foodfish". However, WDG's interest in wild life hatibats
includes certain tidal and subtidal areas as well as associated vegetation.
WDG's opinion on a proposal is sought through the SEPA and Corps review processes,
and in the hydraulic project approval issued jointly with WDF. WDG is
especially interested in protecting habitats. Eel grass beds are of special
interest both as spawning and rearing areas.
Parks and Recreation Commission (PRC) - The PRC has partial jurisdiction over
park aquatic lands owned and operated by the state. While authority on some of
these lands has been transferred to PRC from DNR, certain uses (e.g., mineral
resources extraction) is still under DNR authority. Likewise, WDF and WDG
continue to have certain jurisdictional authority on park lands (especially
in regulation of food and shellfish). PRC also reviews SEPA documents and Corps
applications. PRC has shown a concern for recreation boating access and
navigation; not just on state park lands but throughout Washington waters.
These concerns are addressed during review of Corps proposals.
Other state agencies such as the Department of Transportation (DOT) and the Office
of Archaeology and Historic Preservation have review options in aquatic land pro-
jects. Usually these agencies respond only to a narrow range of interests on any
given proposal and often refrain from comment.
Many state agencies view aquatic land use proposals from a limited perspective.
While certain umbrella statutes (SEPA, SMA) provide the framework for process
and review procedures, it has been up to the local jurisdictions to develop
comprehensive shoreline management plans.

LOCAL SHORELINE MANAGEMENT

Local responsibility for the shoreline areas comes primarily from authorities
granted under the state Shoreline Management Act. Adopted in 1971, this Act
sought to protect and provide for Washington's unique coastal area. Under
broad DOE administration and established guidelines, each county was required
to prepare and adopt a master plan for shorelines in their jurisdiction (this
includes riparian lands on lakes and rivers over a certain size).

Work began in the early 1970s on the master plans, with the majority adopted
by 1979. When serious conflicts between the counties and the aquaculturists
seemed evident with regard to clam harvesting, new DOE guidelines were issued
in August 1980, requiring the counties with identified clam resources to
reevaluate their policies on aquaculture. These revisions were completed in
1982.

Under the SMA, the local government has the power to require a substantial
development permit for a shoreline development and to impose conditions on
that permit. Local government may deny a permit based on environmental issues
or other findings of fact, even though state agencies have made findings on the
same issues with different conclusions. Recognizing this authority, the
policies and management techniques embodied in the local shoreline master plans
are critically important to proposed aquatic land use proposals.

PUBLIC MEETINGS

PORT TOWNSEND OLYMPIA
Tuesday, July 10 - 7-10 p.m. Wednesday, July 25 - 7-10 p.m.
City Council Chambers General Administration Bldg.
City Hall 11th and Columbia
540 Water Street

SPOKANE
MT. VERNON Monday, July 30 - 7-10 p.m.
Monday, July 16 - 7-10 p.m. Spokane Co. Public Health Bldg.
Skagit Co. Courthouse 1101 W. College Avenue
New Administration Bldg. Complex
Hearing Room A
Second and Kincaid RICHLAND
Tuesday, July 31 - 7-10 p.m.
Federal Bldg.
SEATTLE 825 Jadwin Avenue
Thursday, July 19 - 7-10 p.m.
University of Washington
So. Campus Center

LONGVIEW
Monday, July 23 - 7-10 p.m.
Cowlitz County PUD
Public Service Room
960 Commerce Avenue

All meetings will continue until all attendants have had an opportunity to
comment. Written comments will be accepted through August 15, 1984. Send
comments to ALPP, Department of Natural Resources, Mail Stop QW-21, Marine
Land Management Division, Olympia, WA 98504.

AREA OFFICES

OLYMPIC SOUTH PUGET SOUND NORTHEAST
Route 1, Box 1375 28329 S.E. 448th Street Box 190
Forks, WA 98331 Enumclaw, WA 98022 Colville, WA 99114

NORTHWEST SOUTHWEST SOUTHEAST
919 No. Township Street 601 Bond Drive 713 E. Bowers Road
Sedro Woolley, WA 98284 Castle Rock, WA 98611 Ellensburg, WA 98926

CENTRAL
1405 Rush Road
Chehalis, WA 98532

SPEPrI M'lIIDTIU PI Aq DATE
DATE DUE

FROM
Department of Natura
Photos, Maps, and Rel
QW-21
Olympia, WA c

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