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(continued)
(3) Submittals. A request for review of the rent (an original and two copies) shall be submitted within thirty days of notification by the department of the rent due from the lessee/applicant. The request for review shall contain sufficient information for the officers to make a decision on the appropriateness of the rent initially determined by the department. The burden of proof for showing that the rent is incorrect shall rest with the lessee/applicant.
(4) Rental due. The request for review shall be accompanied by one year's rent payment based on the preceding year's rate, or a portion thereof as determined by RCW 79.105.340; or based on the rate proposed by the department, or a portion thereof as determined by RCW 79.105.340, whichever is less. The applicant shall pay any additional rent or be entitled to a refund, with interest, within thirty days after completion of the review process provided in this section.
(5) Contents of request. The request for review shall state what the lessee/applicant believes the rent should be and shall contain, at the minimum, all necessary documentation to justify the lessee/applicant's position. This information shall include but not be limited to:
(a) Rationale. Why the rent established by the department is inappropriate. The supporting documentation for nonwater-dependent leases may include appraisals by professionally accredited appraisers.
(b) Lease information. A description of state-owned aquatic land under lease which shall include, but not be limited to:
(i) Lease or application number;
(ii) Map showing location of lease or proposed lease;
(iii) Legal description of lease area including area of lease;
(iv) The permitted or intended use on the leasehold; and
(v) The actual or current use on the leasehold premises.
(c) Substitute upland parcel. A lessee/applicant whose lease rent is determined according to RCW 79.105.240 (water-dependent leases) and who disputes the choice of the upland parcel as provided by WAC 332-30-123, shall indicate the upland parcel that should be substituted in the rental determination and shall provide the following information on the parcel:
(i) The county parcel number;
(ii) Its assessed value;
(iii) Its area in square feet or acres;
(iv) A map showing the location of the parcel; and
(v) A statement indicating the land use on the parcel and justifying why the parcel should be substituted.
(6) RDO review.
(a) The RDO shall evaluate the request for review within fifteen days of filing to determine if any further support materials are needed from the lessee/applicant or the department.
(b) The lessee/applicant or the department shall provide any needed materials to the RDO within thirty days of receiving a request from the RDO.
(c) The RDO may, at any time during the review, order a conference between the lessee/applicant and department staff to try to settle the rent dispute.
(d) The RDO shall issue a decision within sixty days of filing of the request. Such decision shall contain findings of fact for the decision. If a decision cannot be issued within that time, the lessee/applicant's request will automatically be granted and the rent proposed by the lessee/applicant will be the rent for the lease until the next rent revaluation; provided that, the RDO may extend the review period for one sixty-day period.
(7) RDAO review.
(a) The lessee/applicant may submit a petition within thirty days to the rental dispute appeals officer (RDAO) for review of that decision.
(b) If the RDAO declines to review the petition on the decision of the RDO, the RDO's decision shall be the final decision of the RDAO.
(c) If the RDAO consents to review the decision, the review may only consider the factual record before the RDO and the written findings and decision of the RDO. The RDAO shall issue a decision on the petition containing written findings within sixty days of the filing of the petition. The RDAO may extend the review period for one sixty-day period. This decision shall be the RDAO's final decision. This decision shall be the RDAO's final decision.
(8) Board review.
(a) The lessee/applicant may submit a petition within thirty days to the board of natural resources (board) for review of the RDAO decision.
(b) If the board declines to review the petition, the RDAO decision shall be the final decision of the board.
(c) If the board decides to review the petition, the department and the lessee/applicant shall present written statements on the final decision of the RDAO within thirty days of the decision to review. The board may request oral statements from the lessee/applicant or the department if the board decides a decision cannot be made solely on the written statements.
(d) The board shall issue a decision on the petition within ninety days of the filing of the written statements by the lessee/applicant and the department.
[Statutory Authority: RCW 79.105.360, 79.105.320. 06-18-082, § 332-30-128, filed 9/5/06, effective 10/6/06. Statutory Authority: RCW 79.105.360. 06-06-005 (Order 724), § 332-30-128, filed 2/16/06, effective 3/19/06. Statutory Authority: RCW 79.90.520. 06-01-075 (Resolution No. 1186), § 332-30-128, filed 12/20/05, effective 1/20/06. Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-128, filed 11/5/85.]
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332-30-131
Public use and access.
This section shall not apply to private recreational docks. Subsections (2) and (3) of this section shall not apply to port districts managing aquatic lands under a management agreement (WAC 332-30-114). Public use and access are aquatic land uses of statewide value. Public access and recreational use of state-owned aquatic land will be actively promoted and protected.
(1) Access encouraged. Other agencies will be encouraged to provide, in their planning, for adequate public use and access and for protection of public use and access resources.
(2) Access grants. Aquatic Land Enhancement Account funds will be distributed to state and local agencies to encourage provision of public access to state-owned aquatic lands.
(3) Access advertised. State-owned aquatic lands particularly suitable for public use and access will be advertised through appropriate publications.
(4) No-fee access agreements. No-fee agreements may be made with other parties for provision of public use and access to state-owned aquatic lands provided the other party meets the following conditions:
(a) The land must be available daily to the public on a first-come, first-served basis and may not be leased to private parties on any more than a day-use basis.
(b) Availability of free public use must be prominently advertised by appropriate means as required. For example, signs may be required on the premises and/or on a nearby public road if the facility is not visible from the road.
(c) When the use is dependent on the abutting uplands, the managing entity must own, lease or control the abutting uplands.
(d) User fees shall not be charged unless specifically authorized by the department and shall not exceed the direct operating cost of the facility.
(e) Necessary nonwater-dependent accessory uses will be allowed in the no-fee agreement area only under exceptional circumstances when they contribute directly to the public's use and enjoyment of the aquatic lands and comply with WAC 332-30-137. Such nonwater-dependent uses shall be required to pay a fair-market rent for use of aquatic lands.
(f) Auditable records must be maintained and made available to the state.
(5) Rent reduction for access. Leased developments on state-owned aquatic lands which also provide a degree of public use and access may be eligible for a rent reduction. Rental reduction shall apply only to the actual area within the lease that meets public access and use requirements of subsection (4) of this section.
[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-131, filed 11/5/85.]
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332-30-137
Nonwater-dependent uses.
Policy. Nonwater-dependent use of state-owned aquatic lands is a low priority use providing minimal public benefits. Nonwater-dependent uses shall not be permitted to expand or be established in new areas except in exceptional circumstances and when compatible with water-dependent uses existing in or planned for the area. Analysis under this section will be used to determine the terms and conditions of allowable nonwater-dependent use leases. The department will give public notice of sites proposed for nonwater-dependent use leases.
(1) Exceptional circumstances. The following are exceptional circumstances when nonwater-dependent uses may be allowed:
(a) Nonwater-dependent accessory uses to water-dependent uses such as delivery and service parking, lunch rooms, and plant offices.
(b) Mixed water-dependent and nonwater-dependent development. The water-dependent component shall be a major project element. The nonwater-dependent use shall significantly enhance water-dependent uses and/or resources of statewide value.
(c) Nonwater-dependent uses in structures constructed, or on sites filled, prior to June 30, 1985.
(d) Expansion or realignment of essential public nonwater-dependent facilities such as airports, highways and sewage treatment plants where upland topography, economics, or other factors preclude alternative locations.
(e) When acceptable sites and circumstances are identified in adopted local shoreline management master programs which provide for the present and future needs of all uses and resources of statewide value, identify specific areas or situations in which nonwater-dependent uses will be allowed, and justify the exceptional nature of those areas or situations.
(2) Compatibility with water-dependent uses. Nonwater-dependent uses will only be allowed when they are compatible with water-dependent uses existing in or planned for the area. Evaluation of compatibility will consider the following:
(a) Current and future demands for the site by water-dependent uses.
(b) The effect on the usefulness of adjacent areas for water-dependent uses.
(c) The probability of attracting additional water-dependent or nonwater-dependent uses.
(d) Subsidies offered to water-dependent uses.
(3) Evaluation. Proposed nonwater-dependent uses will be evaluated individually. Applicants must demonstrate the proposed nonwater-dependent uses are consistent with subsections (1) and (2) of this section and any other applicable provisions of this chapter.
(4) Re-leases. Re-leases of nonwater-dependent uses will be evaluated as new uses. If continuance of the nonwater-dependent use substantially conflicts with uses or resources of statewide value or with shoreline master program planning or supplemental planning developed under WAC 332-30-107(5), or if the site is needed by a use of statewide value, the re-lease will not be approved.
[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-137, filed 11/5/85.]
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332-30-139
Marinas and moorages.
(1) Moorage facilities developed on aquatic lands should meet the following design criteria:
(a) Moorage shall be designed so as to be compatible with the local environment and to minimize adverse esthetic impacts.
(b) Open moorage is preferred in relatively undeveloped areas and locations where view preservation is desirable, and/or where leisure activities are prevalent.
(c) Covered moorage may be considered in highly developed areas and locations having a commercial environment.
(d) Enclosed moorage should be confined to areas of an industrial character where there is a minimum of esthetic concern.
(e) In general, covered moorage is preferred to enclosed moorage and open moorage is preferred to covered moorage.
(f) View encumbrance due to enclosed moorage shall be avoided in those areas where views are an important element in the local environment.
(g) In order to minimize the impact of moorage demand on natural shorelines, large marina developments in urban areas should be fostered in preference to numerous small marinas widely distributed.
(h) The use of floating breakwaters shall be considered as protective structures before using solid fills.
(i) Dry moorage facilities (stacked dry boat storage) shall be considered as an alternative to wet storage in those locations where such storage will:
(i) Significantly reduce environmental or land use impacts within the water area of the immediate shoreline.
(ii) Reduce the need for expansion of existing wet storage when such expansion would significantly impact the environment or adjacent land use.
(2) Anchorages suitable for use by transient, recreational boaters will be identified and established by the department in appropriate locations so as to provide additional moorage space.
(3) Upland sewage disposal approved by local government and appropriate state agencies is required for all vessels used as a residence.
(4) The department shall work with federal, state, local government agencies and other groups to determine acceptable locations for marina development, properly distributed to meet projected public need for the period 1980 to 2010.
(5) The department may lease open water moorage and anchorage areas only to local governments that have authorized the establishment of open water moorage and anchorage areas in their local Shoreline Master Programs within five years of the effective date of this rule. With the department's approval, the local government lessee may install mooring buoys or other floating moorage devices, designate anchorage locations, sublease moorage and anchorage in the area, collect rent and fees for such moorage and anchorage, and otherwise manage the area as a moorage facility. All open water moorage and anchorage areas must meet the following requirements:
(a) Open water moorage and anchorage areas must meet all relevant requirements normally applicable to a marina lease, which may include the placement, design, limitation on the number of vessels or floating houses, and operation of the area and any improvements within the area, payment of rent to the department, consideration of navigational and environmental impacts, and all other applicable permits and other requirements of law.
(b) Open water moorage and anchorage areas may not be in a harbor area nor in any location or configuration that would interfere with water-borne commerce and navigation.
(c) The leasing of state-owned aquatic lands for open water moorage and anchorage areas is subject to all preferences accorded upland, tideland, or shoreland owners in RCW 79.125.400, 79.125.460, 79.125.410, 79.130.010, and WAC 332-30-122.
(d) Any vessel used for residential use or floating house in an open water moorage and anchorage area must comply with WAC 332-30-171.
(e) Except for nongrandfathered floating house moorage as defined in WAC 332-30-171 (7)(a)(ii), nonwater-dependent uses and commercial uses are prohibited in open water moorage and anchorage areas. Uses prohibited by this subsection (e) are allowed when necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.
The department will not lease an open water moorage and anchorage area to an entity other than a local government agency. This restriction shall not affect use authorizations to public or private entities for mooring buoys, aquaculture net pens, or other floating structures otherwise allowed by law.
[Statutory Authority: RCW 79.105.360. 06-06-005 (Order 724), § 332-30-139, filed 2/16/06, effective 3/19/06. Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-139, filed 10/17/02, effective 11/17/02. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-139, filed 7/3/80.]
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332-30-144
Private recreational docks.
(1) Applicability. This section implements the permission created by RCW 79.105.430, Private recreational docks, which allows abutting residential owners, under certain circumstances, to install private recreational docks without charge. The limitations set forth in this section apply only to use of state-owned aquatic lands for private recreational docks under RCW 79.105.430. No restriction or regulation of other types of uses on aquatic lands is provided. This section shall not apply to port districts managing aquatic lands under a management agreement (WAC 332-30-114).
(2) Eligibility. The permission shall apply only to the following:
(a) An "abutting residential owner," being the owner of record of property physically bordering on public aquatic land and either used for single family housing or for a multifamily residence not exceeding four units per lot.
(b) A "dock," being a securely anchored or fixed, open walkway structure visible to boaters and kept in good repair extending from the upland property, primarily used as an aid to boating by the abutting residential owner(s), and accommodating moorage by not more than four pleasure boats typical to the body of water on which the dock is located. Two or more abutting residential owners may install and maintain a single joint-use dock provided it meets all other design requirements of this section; is the only dock used by those owners; and that the dock fronts one of the owners' property.
(c) A "private recreational purpose," being a nonincome-producing, leisure-time, and discretionary use by the abutting residential owner(s).
(d) State-owned aquatic lands outside harbor areas designated by the harbor line commission.
(3) Uses not qualifying. Examples of situations not qualifying for the permission include:
(a) Yacht and boat club facilities;
(b) Floating houses, as defined in WAC 332-30-106(23), and vessels used as a residence (as defined in WAC 332-30-106(62));
(c) Resorts;
(d) Multifamily dwellings, including condominium ownerships, with more than four units;
(e) Uses other than docks such as launches and railways not part of the dock, bulkheads, landfills, dredging, breakwaters, mooring buoys, swim floats, and swimming areas.
(4) Limitations.
(a) The permission does not apply to areas where the state has issued a reversionary use deed such as for shellfish culture, hunting and fishing, or park purposes; published an allocation of a special use and the dock is inconsistent with the allocation; or granted an authorization for use such as a lease, easement, or material purchase.
(b) Each dock owner using the permission is responsible for determining the availability of the public aquatic lands. Records of the department are open for public review. The department will research the availability of the public aquatic lands upon written request. A fee sufficient to cover costs shall be charged for this research.
(c) The permission is limited to docks that conform to adopted shoreline master programs and other local ordinances.
(d) The permission is not a grant of exclusive use of public aquatic lands to the dock owner. It does not prohibit public use of any aquatic lands around or under the dock. Owners of docks located on state-owned tidelands or shorelands must provide a safe, convenient, and clearly available means of pedestrian access over, around, or under the dock at all tide levels. However, dock owners are not required to allow public use of their docks or access across private lands to state-owned aquatic lands.
(e) The permission is not transferable or assignable to anyone other than a subsequent owner of the abutting upland property and is continuously dependent on the nature of ownership and use of the properties involved.
(f) Vessels used as a residence and floating houses are not permitted to be moored at a private recreational dock, except when such moorage is necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.
(5) Revocation. The permission may be revoked or canceled if:
(a) The dock or abutting residential owner has not met the criteria listed in subsection (2) or (4) of this section; or
(b) The dock significantly interferes with navigation or with navigational access to and from other upland properties. This degree of interference shall be determined from the character of the shoreline and waterbody, the character of other in-water development in the vicinity, and the degree of navigational use by the public and adjacent property owners;
(c) The dock interferes with preferred water-dependent uses established by law; or
(d) The dock is a public health or safety hazard.
(6) Appeal of revocation. Upon receiving written notice of revocation or cancellation, the abutting residential owner shall have thirty days from the date of notice to file for an administrative hearing under the contested case proceedings of chapter 34.05 RCW. If the action to revoke the permission is upheld, the owner shall correct the cited conditions and shall be liable to the state for any compensation due to the state from the use of the aquatic lands from the date of notice until permission requirements are met or until such permission is no longer needed. If the abutting residential owner disclaims ownership of the dock, the department may take actions to have it removed.
(7) Current leases. Current lessees of docks meeting the criteria in this section will be notified of their option to cancel the lease. They will be provided a reasonable time to respond. Lack of response will result in cancellation of the lease by the department.
(8) Property rights. No property rights in, or boundaries of, public aquatic lands are established by this section.
(9) Lines of navigability. The department will not initiate establishment of lines of navigability on any shorelands unless requested to do so by the shoreland owners or their representatives.
(10) Nothing in this section is intended to address statutes relating to sales of second class shorelands.
[Statutory Authority: RCW 79.105.360. 06-06-005 (Order 724), § 332-30-144, filed 2/16/06, effective 3/19/06. Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-144, filed 10/17/02, effective 11/17/02. Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), § 332-30-144, filed 11/5/85.]
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332-30-145
Booming, rafting and storage of logs.
All requirements in this section shall apply to the department and to port districts managing aquatic lands under a management agreement (WAC 332-30-114).
(1) Unless specifically exempted in writing, all log dumps located on aquatic lands, or operated in direct association with booming grounds on aquatic land, must provide facilities for lowering logs into the water without tumbling, which loosens the bark. Free rolling of logs is not permitted.
(2) Provision must be made to securely retain all logs, chunks, and trimmings and other wood or bark particles of significant size within the leased area. Lessee will be responsible for regular cleanup and upland disposal sufficient to prevent excessive accumulation of any debris on the leased area.
(3) Unless permitted in writing, aquatic land leased for booming and rafting shall not be used for holding flat rafts except:
(a) Loads of logs averaging over 24" diameter.
(b) Raft assembly, disassembly and log sort areas.
(4) Unless permitted in writing, grounding of logs or rafts is not allowed on tidelands leased for booming and rafting. However, tidelands which were leased for booming and rafting prior to January 1, 1980, are exempt from this provision.
(5) No log raft shall remain on aquatic land for more than one year, unless specifically authorized in writing.
(6) For leases granted to serve the general needs of an area such as an island, the leased area shall be made available to others for booming and rafting and at a reasonable charge.
(7) Areas within a lease boundary meeting the definition of log booming are water-dependent uses. The rent for these areas will be calculated according to WAC 332-30-123.
(8) Areas leased for log storage shall have the rent calculated by applying a statewide base unit rent per acre. Temporary holding of logs alongside a vessel for the purpose of loading onto the vessel is neither booming nor storage.
(9) The base unit rent, application to existing leases, and subsequent annual rents will be determined as provided for water-dependent uses under WAC 332-30-123 except for the following modifications:
(a) A formula rental calculation will be made for each such area leased as of July 1, 1984, as though the formula applied on July 1, 1984.
(b) The assessment for an upland parcel shall not be used when the following situations exist:
(i) The parcel is not assessed.
(ii) The size of the parcel in acres or square feet is not known.
(c) When necessary to select an alternative upland parcel, the nearest assessed waterfront parcel shall be used if not excluded by the criteria under (b) of this subsection.
(d) Because of the large size and shape of many log storage areas, there may be more than one upland parcel that could be used in the formula. The department shall treat such multiple parcel situations by using:
(i) The per unit value of each upland parcel applied to its portion of the lease area. If it is not possible or feasible to delineate all portions of the lease area by extending the boundaries of the upland parcel, then;
(ii) The total of the assessed value of all the upland parcels divided by the total acres of all the upland parcels shall be the per unit value applied in the formula.
(e) The total formula rents divided by the total acres under lease for log storage equals the annual base unit rent for fiscal years 1985-1989. That figure is $171.00 per acre.
(f) For purposes of calculating stairstepping of rentals allowed under WAC 332-30-123, the base unit rent multiplied by the number of acres shall be the formula rent. In cases of mixed uses, the log storage formula rent shall be added to the formula rent determinations for the other uses under leases before applying the criteria for stairstepping.
(g) Inflation adjustments to the base rent shall begin on July 1, 1990.
(10) On July 1, 1989, and each four years thereafter, the department shall establish a new base unit rent.
(a) The new base rent will be the previous base rent multiplied by the result of dividing the average water-dependent lease rate per acre for the prior fiscal year by the average water-dependent lease rate per acre for the fiscal year in which the base unit rent was last established. For example, the formula for the base unit rent for fiscal year 1990 would be:
FY90 BUR = FY85 BUR x
(FY89 AWLR)
(FY85 AWLR)
(b) When necessary to calculate the average water-dependent lease rate per acre for a fiscal year, it shall be done on or near July 1. The total formula rent plus inflation adjustments divided by the total acres of water-dependent uses affected by the formula during the prior fiscal year shall be the prior fiscal year's average.
(11) If portions of a log storage lease area are open and accessible to the general public, no rent shall be charged for such areas provided that:
(a) The area meets the public use requirements under WAC 332-30-130(9);
(b) Such areas are in a public use status for a continuous period of three months or longer during each year;
(c) The lease includes language addressing public use availability or is amended to include such language;
(d) The department approves the lessee's operations plan for public use, including safety precautions;
(e) Changes in the amount of area and/or length of time for public use availability shall only be made at the time of rental adjustment to the lease; and
(f) Annual rental for such areas will be prorated by month and charged for each month or part of a month not available to the general public.
[Statutory Authority: 1984 c 221 and RCW 79.90.540. 84-23-014 (Resolution No. 470), § 332-30-145, filed 11/9/84. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-145, filed 7/3/80.]
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332-30-148
Swim rafts and mooring buoys.
(1) Swim rafts or mooring buoys will not be authorized where such structures will interfere with heavily traveled routes for watercraft, commercial fishing areas or on designated public use - wilderness beaches.
(2) Swim rafts or mooring buoys may be authorized on aquatic lands shoreward of the -3 fathom contour or within 200 feet of extreme low water or line of navigability whichever is appropriate. The placement of rafts and buoys beyond the -3 fathom contour or 200 feet will be evaluated on a case by case basis.
(3) No more than one structure may be installed for each ownership beyond extreme low water or line of navigability. However, ownerships exceeding 200 feet as measured along the shoreline may be permitted more installations on a case by case basis.
(4) Swim rafts or buoys must float at least 12" above the water and be a light or bright color.
(5) Mooring buoys may be authorized beyond the limits described above on land designated by the department for anchorages.
(6) Vessels for residences, as defined in WAC 332-30-106(62) and floating houses, as defined in WAC 332-30-106(23) shall not moor at swim rafts, mooring buoys, or other moorage facilities not connected to the shoreline, except within an open water moorage and anchorage area leased to a local government agency as provided in WAC 332-30-139(5). Such moorage may occur when necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.
[Statutory Authority: RCW 79.90.455, 79.90.460. 02-21-076 (Order 710), § 332-30-148, filed 10/17/02, effective 11/17/02. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-148, filed 7/3/80.]
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332-30-151
Reserves (RCW 79.68.060).
(1) Types of reserves: Educational, environmental, scientific - see definitions (WAC 332-30-106).
(2) Aquatic lands of special educational or scientific interest or aquatic lands of special environmental importance threatened by degradation shall be considered for reserve status. Leases for activities in conflict with reserve status shall not be issued.
(3) The department or other governmental entity or institution may nominate specific areas for consideration for reserve status.
(4) Such nominations will be reviewed and accepted or rejected by the commissioner of public lands based upon the following criteria:
(a) The site will accomplish the purpose as stated for each reserve type.
(b) The site will not conflict with other current or projected uses of the area. If it does, then a determination must be made by the commissioner of public lands as to which use best serves the public benefit.
(c) Management of the reserve can be effectively accomplished by either the department's management program or by assignment to another governmental agency or institution.
(5) The department's reserves management program consists of prevention of conflicting land use activities in or near the reserve through lease actions. In those cases where physical protection of the area may be necessary the management of the area may be assigned to another agency.
(6) When DNR retains the management of reserve areas the extent of the management will consist of a critical review of lease applications in the reserve area to insure proposed activities or structures will not conflict with the basis for reserve designation. This review will consist of at least the following:
(a) An environmental assessment.
(b) Request of agencies or institutions previously identified as having a special interest in the area for their concerns with regard to the project.
(7) Proposed leases for structures or activities immediately adjacent to any reserve area will be subjected to the same critical review as for leases within the area if the structures and/or activities have the potential of:
(a) Degrading water quality,
(b) Altering local currents,
(c) Damaging marine life, or
(d) Increasing vessel traffic.
(8) All management costs are to be borne by the administering agency. Generally, no lease fee is required.
[Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-151, filed 7/3/80.]
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332-30-157
Commercial clam harvesting.
(1) Commercial clam beds on aquatic lands shall be managed to produce an optimum yield.
(2) The boundaries of clam tracts offered for lease shall be established and identified to avoid detrimental impacts upon significant beds of aquatic vegetation or areas of critical biological significance as well as prevent unauthorized harvesting.
(3) The methods of harvest may only be those as established by law and certified by the department of fisheries.
(4) Surveillance methods will be employed to insure that trespass as well as off-tract harvesting is prevented.
(5) Harvesters must comply with all lease provisions. Noncompliance may result in lease suspension or cancellation upon notification.
(6) Harvesters must comply with all applicable federal, state and local rules and regulations. Noncompliance may result in lease suspension or cancellation upon notification.
(7) If appropriate, the department may secure all necessary permits prior to leasing.
[Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-157, filed 7/3/80.]
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332-30-163
River management.
(1) Use and/or modification of any river system shall recognize basic hydraulic principles, as well as harmonize as much as possible with the existing aquatic ecosystems, and human needs.
(2) Priority consideration will be given to the preservation of the streamway environment with special attention given to preservation of those areas considered esthetically or environmentally unique.
(3) Bank and island stabilization programs which rely mainly on natural vegetative systems as holding elements will be encouraged.
(4) Research will be encouraged to develop alternative methods of channel control, utilizing natural systems of stabilization.
(5) Natural plant and animal communities and other features which provide an ecological balance to a streamway, will be recognized in evaluating competing human use and protected from significant human impact.
(6) Normal stream depositions of logs, uprooted tree snags and stumps which abut on shorelands and do not intrude on the navigational channel or reduce flow, or adversely redirect a river course, and are not harmful to life and property, will generally be left as they lie, in order to protect the resultant dependent aquatic systems.
(7) Development projects will not, in most cases, be permitted to fill indentations such as mudholes, eddies, pools and aeration drops.
(8) Braided and meandering channels will be protected from development.
(9) River channel relocations will be permitted only when an overriding public benefit can be shown. Filling, grading, lagooning or dredging which would result in substantial detriment to navigable waters by reason of erosion, sedimentation or impairment of fish and aquatic life will not be authorized.
(10) Sand and gravel removals will not be permitted below the wetted perimeter of navigable rivers except as authorized under a departments of fisheries and game hydraulics permit (RCW 75.55.100). Such removals may be authorized for maintenance and improvement of navigational channels.
(11) Sand and gravel removals above the wetted perimeter of a navigable river (which are not harmful to public health and safety) will be considered when any or all of the following situations exist:
(a) No alternative local upland source is available, and then the amount of such removals will be determined on a case by case basis after consideration of existing state and local regulations.
(b) The removal is designed to create or improve a feature such as a pond, wetland or other habitat valuable for fish and wildlife.
(c) The removal provides recreational benefits.
(d) The removal will aid in reducing a detrimental accumulation of aggregates in downstream lakes and reservoirs.
(e) The removal will aid in reducing damage to private or public land and property abutting a navigable river.
(12) Sand and gravel removals above the wetted perimeter of a navigable river will not be considered when:
(a) The location of such material is below a dam and has inadequate supplementary feeding of gravel or sand.
(b) Detached bars and islands are involved.
(c) Removal will cause unstable hydraulic conditions detrimental to fish, wildlife, public health and safety.
(d) Removal will impact esthetics of nearby recreational facilities.
(e) Removal will result in negative water quality according to department of ecology standards.
(13) Bank dumping and junk revetment will not be permitted on aquatic lands.
(14) Sand and gravel removal leases shall be conditioned to allow removal of only that amount which is naturally replenished on an annual basis.
[Statutory Authority: RCW 79.105.360. 06-06-005 (Order 724), § 332-30-163, filed 2/16/06, effective 3/19/06. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-163, filed 7/3/80.]
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332-30-166
Open water disposal sites.
(1) Open water disposal sites are established primarily for the disposal of dredged material obtained from marine or fresh waters. These sites are generally not available for disposal of material derived from upland or dryland excavation except when such materials would enhance the aquatic habitat.
(2) Material may be disposed of on state-owned aquatic land only at approved open water disposal sites and only after authorization has been obtained from the department. Applications for use of any area other than an established site shall be rejected. However, the applicant may appeal to the interagency open water disposal site evaluation committee for establishment of a new site.
(3) Application for use of an established site must be for dredged material that meets the approval of federal and state agencies and for which there is no practical alternative upland disposal site or beneficial use such as beach enhancement.
(4) The department will only issue authorization for use of the site after:
(a) The environmental protection agency and department of ecology notify the department that, in accordance with Sections 404 and 401, respectively, of the Federal Clean Water Act, the dredged materials are suitable for in-water disposal and do not appear to create a threat to human health, welfare, or the environment; and
(b) All necessary federal, state, and local permits are acquired.
(5) Any use authorization granted by the department shall be subject to the terms and conditions of any required federal, state, or local permits.
(6) The department shall suspend or terminate any authorization to use a site upon the expiration of any required permit.
(7) All leases for use of a designated site must require notification to DNR in Olympia twenty-four hours prior to each use. DNR Olympia must be notified five working days prior to the first use to permit an on-site visit to confirm with dump operator the site location.
(8) Pipeline disposal of material to an established disposal site will require special consideration.
(9) Fees will be charged at rates sufficient to cover all departmental costs associated with management of the sites. Fees will be reviewed and adjusted annually or more often as needed. A penalty fee may be charged for unauthorized dumping or dumping beyond the lease site. Army Corps of Engineers navigation channel maintenance projects where there is no local sponsor are exempt from this fee schedule.
FEES
(a) Puget Sound and Strait of Juan De Fuca: All disposal sites $0.45 per cubic yard (c.y.), $2,000 minimum
(b) Grays Harbor/Willapa Bay: All disposal sites $0.10 per cubic yard (c.y.), minimum fee $300.00
(c) Damage fee - $5.00/cubic yard
(10) Open water disposal site selection. Sites are selected and managed by the department with the advice of the interagency open water disposal site evaluation committee (a technical committee of the aquatic resources advisory committee). The committee is composed of representatives of the state departments of ecology, fisheries, game, and natural resources as well as the Federal Army Corps of Engineers, National Marine Fisheries Service, Environmental Protection Agency, and Fish and Wildlife Service. The department chairs the committee. Meetings are irregular. The committee has developed a series of guidelines to be used in selecting disposal sites. The objectives of the site selection guidelines are to reduce damage to living resources known to utilize the area, and to minimize the disruption of normal human activity that is known to occur in the area. The guidelines are as follows:
(a) Select areas of common or usual natural characteristics. Avoid areas with uncommon or unusual characteristics.
(b) Select areas, where possible, of minimal dispersal of material rather than maximum widespread dispersal.
(c) Sites subject to high velocity currents will be limited to sandy or coarse material whenever feasible.
(d) When possible, use disposal sites that have substrate similar to the material being dumped.
(e) Select areas close to dredge sources to insure use of the sites.
(f) Protect known fish nursery, fishery harvest areas, fish migration routes, and aquaculture installations.
(g) Areas proposed for dredged material disposal may require an investigation of the biological and physical systems which exist in the area.
(h) Current velocity, particle size, bottom slope and method of disposal must be considered.
(i) Projects transporting dredged material by pipeline will require individual review.
(j) Placement of temporary site marking buoys may be required.
(k) The department will assure disposal occurs in accordance with permit conditions. Compliance measures may include, but are not limited to, visual or electronic surveillance, marking of sites with buoys, requiring submittal of operator reports and bottom sampling or inspection.
(l) Special consideration should be given to placing material at a site where it will enhance the habitat for living resources.
(m) Locate sites where surveillance is effective and can easily be found by tugboat operators.
(11) The department shall conduct such subtidal surveys as are necessary for siting and managing the disposal sites.
[Statutory Authority: RCW 43.30.150, 79.90.550, 79.90.555 and 79.90.560. 94-23-006 (Order 628), § 332-30-166, filed 11/3/94, effective 12/4/94. Statutory Authority: RCW 79.90.560. 90-02-085, § 332-30-166, filed 1/3/90, effective 2/3/90; 88-13-082 (Order 537, Resolution No. 585), § 332-30-166, filed 6/17/88. Statutory Authority: RCW 79.90.100 and 43.30.150. 85-15-050 (Order 451, Resolution No. 492), § 332-30-166, filed 7/16/85. Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), § 332-30-166, filed 7/3/80.]
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332-30-170
Tideland and shoreland exchange.
The department will use this rule when it considers exchanging tidelands or shorelands with private individuals or public entities pursuant to RCW 79.105.400. The department may exchange these aquatic lands if the exchange is in the public interest and will actively contribute to the public benefits established in RCW 79.105.030. Those benefits are: Encouraging direct public use and access; fostering water-dependent uses; ensuring environmental protection; utilizing renewable resources; and generating revenue in a manner consistent with these benefits. The department may not exchange state-owned harbor areas or waterways.
(1) Eligibility criteria. The department may consider exchanging ownership of tidelands or shorelands with private and other public landowners if the proposed exchange meets the eligibility criteria set forth in (a) and (b) of this subsection.
(a) The economic values of the parcels must be equal or the exchange must result in a net economic gain to the state. The economic value must be determined by a qualified independent appraiser and/or economist and accomplished through a methodology accepted by the department.
(b) The tidelands or shorelands to be conveyed into state ownership must abut navigable water.
(2) Evaluation criteria. Subject to available funding, the department will evaluate eligible proposed exchanges according to the following criteria. The department will give priority and preference to proposed exchanges which, in the department's judgment, are in the public interest by providing the greatest public benefits, the least negative impacts, and the most appropriate resolution of other considerations, as set forth in (a), (b) and (c) of this subsection.
(a) The tidelands or shorelands to be conveyed into state ownership must have one or more of the following characteristics:
(i) Be or abut a critical and/or an essential habitat identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or the United States Department of Fish and Wildlife;
(ii) Be or abut a critical area identified by jurisdictions under chapter 36.70A RCW;
(iii) Be an area beneficial to sediment transport and/or nearshore habitat function identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or the United States Department of Fish and Wildlife;
(iv) Be actively used or abut a parcel used in the commercial production of food or fibre or other renewable resource production (for example, commercial grade beds of shellfish and aquaculture facilities);
(v) Abut a state or national wildlife refuge;
(vi) Abut an upland parcel with public upland ownership, easements, or some other formalized agreement that would allow direct public use of and access to the water;
(vii) Be actively used or abut parcel(s) actively used for water-dependent uses or allow for water dependent use;
(viii) Contain a historic or archaeological property listed on or eligible to be listed on the National Register of Historic Places; or
(ix) Generate or have the potential to generate higher revenues than the parcel being transferred out-of-state ownership in a manner consistent with the benefits listed in RCW 79.105.030.
(b) The proposed exchange must have beneficial or no negative impacts on:
(i) Navigation;
(ii) The diversity and health of the local environment including the production and utilization of renewable resources;
(iii) The quantity and quality of public access to the waterfront;
(iv) Treaty rights of federally recognized tribes. The department will solicit comments on a proposed exchange from affected tribes; and
(v) Hazardous waste and contaminated sediments liability issues.
(c) The following issues must also be considered:
(i) Consistency with plans and development guidelines of public ports, counties, cities and other local, state, and federal agencies;
(ii) The relative manageability of the tidelands or shorelands to be exchanged including, but not limited to, the effect of the exchange on management costs, liability and upland access, and the relative proximity of the tidelands or shorelands to be exchanged to other state-owned shorelands or tidelands; and
(iii) The cumulative impacts of similarexchanges on water dependent uses, nonrenewable and renewable natural resources, and total aquatic lands acreage managed by the department. (continued)