SMA and Critical Areas · SMP. Critical area regulations (new or revised from existing) 1. Integrate critical area provisions into SMP. SMP “Critical areas provisions of Ordinance

SMA and Critical Areasand

Update on SMA periodic review rules

Tim Gates, AICPShoreline Policy Lead

Department of EcologyFall 2016 Moses Lake

Local Shoreline Master Program

Like a “subarea plan” for shorelines where state interests apply

Policies

Regulations

Permit/appeal Procedures

Environment Designations (overlay on zoning)

&

• Ecology reviews SMPs for consistency with SMA & Guidelines• Comprehensive updates statewide (2005-2017-ish)

County CAO SMP

SMP covers larger streams, lakes over 20 acres

Shorelines and critical areas

Presenter

Presentation Notes

There is extensive overlap between CAOs and SMPs. CAOs typically designate all “waters of the state” as critical areas

Critical area protections “transfer” to updated SMPs

2003 law, clarified by Legislature in 2010 :

Updated SMPs are to provide “sole” regulation of critical areas in shoreline jurisdiction.

Ecology’s test for adequacy of critical area regulations is whether they achieve “no net loss of functions”

• Statute on CAOs/SMPs: RCW 36.70A.480 RCW 90.58.610• SMP guidelines: WAC 173-26-191(2)(b), -221(2)

EHB 1653

Presenter

Presentation Notes

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Typical Fish and Wildlife Habitat Conservation Areas protections

Apply to “Waters of the state”

Vegetative Buffers

Requirements for habitat assessments

Performance standards requiring mitigation for alterations

Restrictions on clearing & grading

Subdivision restrictions preventing new parcels fully encumbered by critical areas and buffers

Requirements for notice on title

Two options for regulating critical areas in SMPs

2. Incorporate specific, dated CAO by reference

WAC 173-26-191(2)(b)

SMP

Critical area regulations

(new or revised from existing)

1. Integrate critical area provisions into SMP

SMP

“Critical areas provisions of Ordinance # 07-11,

dated August 4, 2007, are hereby incorporated by

reference, with the following exceptions…”

CAO (Appendix)

Ordinance # 07-11 August 4, 2007

Presenter

Presentation Notes

Pros and cons with each approach. Note: first approach includes 1) writing new and integrating or 2) integrating existing regulations Decide which one you intend to use (and consult with Ecology) during phase 3 of the update.

How to integrate CAO: “Applicability” section

1. Subject to exceptions below, the critical areas provisions of Ordinance # 07-11, dated August 4, 2007, are incorporated by reference, except that:

• Reasonable Use Exceptions• Appeal, and • Enforcement decisions

within shoreline jurisdiction shall be governed by this Program and not the Critical Areas Ordinance.

2. In the event standards in the Critical Areas Ordinance are inconsistent with standards and requirements in this Program, this Program shall govern.

• List sections that don’t apply (e.g, exemptions for small wetlands)

Some proceduresmust follow SMA requirements. (e.g., must use Ecology Variance to address “reasonable use”)

Standards can vary within shorelines (e.g., to allow for water-dependent uses, or to meet “no net loss” test)

WAC 173-26-201

Presenter

Presentation Notes

We won’t approve a CAO inconsistent with the SMA procedural rules or the SMP Guidelines. If you ‘integrate’, this often includes things like permit procedures/processes and appeals, penalties, enforcement, etc. This can be dealt with by additions or exceptions when you integrate your CAO.

“Inventory-based” fish and wildlife habitat buffers

• Tailored buffers based on existing conditions and anticipated development• Can use environment designations and/or use regulations to vary buffers• Option for areas with constrained lots

Presenter

Presentation Notes

Must meet no net loss – this can often be backed up by the cumulative impacts analysis Ecology reviews how these interact with OHWM setbacks and what uses/activities are authorized within them. Spokane example

SMA procedures: notice, construction hold

RCW 90.58.140, 143

Permits: “construction pursuant to a permit will not begin or be authorized until 21 days from the date the permit decision was filed”

CUP & Variance: Ecology approval

Presenter

Presentation Notes

Updated SMPs all clarify procedural differences: Substantial Development Permit – filed with Ecology Conditional Use and Variance – Ecology final approval CAO “Reasonable Use” = “Variance” in shoreline

Ecology SMA rule-making update

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1995 2005 2015 2025

Legislature orders new SMP guidelines

2003 guidelines update

202020102000

SMP guidelines:

• Negotiated settlement

• Legislature: schedule and money

Comprehensive updates

• One-time overhaul of ~260 SMPs.• Integrate with GMA • Regulations to achieve “No Net

Loss”

Review2019-22

Review2027-30

• Implement• Keep SMPs current

Ecology rulemaking: 30-year context

2017rule update

Presenter

Presentation Notes

Why is Ecology proposing updates to shoreline rules right now? Timeline = 30 years of shoreline planning Ecology’s first rules adopted in 1972 and basically changed for decades. From 95 – 2003, 8 years to update. Rule was appealed. Negotiated settlement agreement between Ecology, local governments, businesses, and environmental groups. Rules outlined new The settlement included agreement on a staggered schedule for SMP updates and a commitment to state funding for updates. CLICK 12 years so far to update comprehensive plans to meet the new guidelines This is a one-time refresh of all SMPs. Grants have totaled ~ $34 Million Integrate with recent comp plans, catch up with current conditions, and regulations designed to achieve No Net Loss of ecological function. CLICK About 2/3 of SMPs are done. They often take longer than we expect. CLICK The current rule we are starting now will be final in 2017. CLICK The primary purpose is to provide direction for the “next phase” of shoreline management. The Legislature has established a schedule for “periodic review” of these comprehensively updated SMPs. The first deadlines are due in 2019 so we want to ensure the rules are in place 2 years before the first deadlines. The primary task over the coming decades will be to implement these new SMPs. The periodic reviews are intended to make sure the SMPs stay fresh. The rules will define the procedures of these reviews and do not change the goalposts for the comprehensive updates in the middle of the game.

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Rule update process

July July201820172016

Local “Sounding Board”

WSAC/AWC

Ecology grant cycle: begins two years before first periodic review due

Preliminary draft rule for public comment

Formal rule proposal and

adoption

June 2019: first SMP reviews due

Rule effective

2019July July July

Rule-making

announced

Presenter

Presentation Notes

Because the periodic review is the main driver for this rule update, we need to ensure the rule is in effect 2 years before the first reviews are due. Rulemaking was announced September 2015 and our target effective date is July 2017. CLICK Ecology started by working with local government Sounding Board, a panel of 8 planning directors from across the state. Local government planners are the primary audience that has to implement these rules. As part of the cooperative program we wanted to share our first draft with help from local governments. CLICK We release a preliminary draft rule for comments from all interested parties during July and August 2016. We’d like to hear suggestions for CLICK We will enter the formal rule proposal stage in December 2016 This will include 4 hearings across the state We expect formal adoption in Summer 2017 Ecology expects to have a grant program for local governments up and running, so we can help fund the first periodic review due June 30, 2019

Periodic review: purpose

The Legislative mandate is to “review and if necessary, revise…”

to assure the SMP:

1) Complies with applicable laws and Ecology rules

2) Remains consistent with the comprehensive plan and development regulations adopted under the Growth Management Act

Ecology proposal:• Scope = statutory

purpose• “applicable laws and

rules” are those that were not in effect the last time the SMP was amended)

• existing SMPs are presumed adequate

• no requirement to re-do inventories

• Identifies optional elements

Review:Evaluate need

for amendments, in a public

process

Checklist: Laws/Rules

Legislative action:Adopt Amendments

Revise:SMP local

public process

Ecology Approval *

Amendment needed

Legislative action:Finding of Adequacy

No amendment

needed

Periodic review: public process

* Triggers appeal period.

Based on GMA periodic review rule. Starts with public participation plan.

New option: “Joint review” of SMP amendments

Problem: Existing rules require both local and state comment periods for every SMP amendment• Improvements slowed by 2 – 6 months• Procedural steps draw staff from implementation

Proposed solution: New optional process for future amendments: • “Joint review” combine state and local comment period • Consolidates but doesn’t reduce public process

Presenter

Presentation Notes

This rule amendment is strictly procedural. It is about the formal steps that local governments and the state take to modify SMPs.

Prepare SMP amendments: consult with interested parties,

Planning Commission review

Ecology sends comments to local government

Local action

Ecologyaction

Joint action

Legend

Local notice: (GMA review, SEPA, newspaper ad)

State Notice

Local comment period & hearing

Ecology comment period and (optional) hearing

Local response to comments

Local government consult w/Ecology (encouraged)

Local government adopts SMP, complete submittal to Ecology

Figure 1. Existing process

Ecology review & final action

Ecology review for completeness

Ecology initial determination whether amendments comply

Ecology review & final action

Joint notice: (GMA review, SEPA, newspaper ad)

Joint local/state comment period & hearing

Local government consult w/Ecology (required)

Prepare SMP amendments: consult with interested parties,

Planning Commission review

Local government adopts SMP, complete submittal to Ecology

Figure 2. Optional Joint Review

Ecology review for completeness

Local response to comments

Added step to improve

transparency. Initial Ecology

response before local

adoption

Presenter

Presentation Notes

These are the details. Steps in Fig 1 are the current process Steps in Fig 2 are the proposed process Blue boxes are Local Actions Yellow boxes are Ecology Actions Green boxes are new “joint” actions The requirements to consult with interested parties and work with Ecology early and often while developing amendments are the same. The final Ecology review steps are the same under either. The way they are different is CLICK Under the new optional process the local notice and comment period CLICK Would be combined with the State Notice and Comment period CLICK In a Joint Local/State notice and comment period The Local Government can then respond to comments directly instead of having Ecology summarize them and send them to the local government CLICK One additional step is added Ecology is directed to provide an initial written response indicating whether after incorporating any changes to respond to comment that the amendments comply with the Act and state rules.

What’s next

Formal rules will be proposed Winter.

Comment period and 4 hearings across the state

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For information:Visit Ecology’s WebsiteJoin the Listserv

Contact:Michelle [email protected]

Presenter

Presentation Notes

http://www.ecy.wa.gov/programs/sea/rules/1506ov.html

http://listserv.wa.gov/cgi-bin/wa?A0=ECOLOGY-SHORELINE-RULE

mailto:[email protected]

Documents

SMA and Critical Areas · SMP. Critical area regulations (new or revised from existing) 1. Integrate critical area provisions into SMP. SMP “Critical areas provisions of Ordinance