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(continued) the appropriate dollar limits and their effective dates.
(2) New communities.
(a) Any county planning under the act may reserve a portion of its twenty-year population projection for new fully contained communities, located outside of the initially designated urban growth areas.
(b) Proposals to authorize such communities shall be processed pursuant to development regulations which implement the criteria set forth in RCW 36.70A.350.
(3) Master planned resorts.
(a) Any county planning under the act may permit master planned resorts constituting urban growth outside of urban growth areas.
(b) Proposals to authorize such resorts shall be processed pursuant to development regulations which implement policies on the subject in the comprehensive plan. Approval criteria shall conform to the provisions of RCW 36.70A.360.
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-830, filed 8/11/93, effective 9/11/93; 92-23-065, § 365-195-830, filed 11/17/92, effective 12/18/92.]
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365-195-835
Concurrency regulations.
(1) Each planning jurisdiction should produce a regulation or series of regulations which govern the operation of that jurisdiction's concurrency management system. This regulatory scheme will set forth the procedures and processes to be used to determine whether relevant public facilities have adequate capacity to accommodate a proposed development. In addition, the scheme should identify the responses to be taken when it is determined that capacity is not adequate to accommodate a proposal. Relevant public facilities for these purposes are those to which concurrency applies under the comprehensive plan. Adequate capacity refers to the maintenance of concurrency.
(2) Compliance with applicable environmental requirements, such as ambient air quality standards or water quality standards, should have been built into the determination of the facility capacities needed to accommodate anticipated growth.
(3) The variations possible in designing a concurrency management system are many. However, such a system could include the following features:
(a) Capacity monitoring -- a process for collecting and maintaining real world data on use for comparison with evolving public facility capacities in order to show at any moment how much of the capacity of public facilities is being used.
(b) Capacity allocation procedures -- a process for determining whether proposed new development can be accommodated within the existing or programmed capacity of public facilities.
This can include preassigning amounts of capacity to specific zones, corridors or areas on the basis of planned growth. For any individual development this may involve:
(i) A determination of anticipated total capacity at the time the impacts of development occur.
(ii) Calculation of how much of that capacity will be used by existing developments and other planned developments at the time the impacts of development occur.
(iii) Calculation of the amount of capacity available for the proposed development.
(iv) Calculation of the impact on capacity of the proposed development, minus the effects of any mitigation provided by the applicant. (Standardized smaller developments can be analyzed based on predetermined capacity impact values.)
(v) Comparison of available capacity with project impact.
(c) Provisions for reserving capacity -- a process of prioritizing the allocation of capacity to proposed developments. This might include:
(i) Setting aside a block or blocks of available or anticipated capacity for specified types of development fulfilling an identified public interest.
(ii) Adopting a first-come, first-served system of allocation, dedicating capacity to applications in the order received.
(iii) Adopting a preference system giving certain categories or specified types of development preference over others in the allocation of available capacity.
(d) Provisions specifying the response when there is insufficient available capacity to accommodate development.
(i) In the case of transportation, an ordinance must prohibit development approval if the development causes the level of service of a transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan unless improvements or strategies to accommodate the impacts of development are made concurrent with development.
(ii) If the proposed development is consistent with the land use element, relevant levels of service should be reevaluated.
(iii) Other responses could include:
(A) Development of a system of deferrals, approving proposed developments in advance but deferring authority to construct until adequate public facilities become available at the location in question. Such a system should conform to and help to implement the growth phasing schedule contemplated in the land use and capital facilities elements of the plan.
(B) Conditional approval through which the developer agrees to mitigate the impacts.
(C) Denial of the development, subject to resubmission when adequate public facilities are made available.
(e) Form, timing and duration of concurrency approvals. The system should include provisions for how to show that a project has met the concurrency requirement, whether as part of another approval document (e.g., permit, platting decisions, planned unit development) or as a separate certificate of concurrency, possibly a transferable document. This choice, of necessity, involves determining when in the approval process the concurrency issue is evaluated and decided. Approvals, however made, should specify the length of time that a concurrency determination will remain effective, including requirements for development progress necessary to maintain approval.
(f) Provisions for interjurisdictional coordination.
(4) Planning jurisdictions should consider integrating SEPA compliance on the project-specific level with the case-by-case process for concurrency management.
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-835, filed 8/11/93, effective 9/11/93.]
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365-195-840
Essential public facilities.
(1) Development regulations for identifying and siting essential public facilities shall be consistent with and implement the process for this purpose set forth in the comprehensive plan.
(2) The regulations should list those types of facilities which the planning jurisdiction has determined are essential, pursuant to the definition and the criteria established in the comprehensive plan for identifying such facilities. The designated facilities should include those listed by the state office of financial management and those necessary to list in order to comply with county-wide planning policies. In addition, other facilities needed locally should be listed. These may include facilities which receive funding from the state or other governmental units, but which are not identified on the state list or by virtue of county-wide policies.
(3) Except where county-wide planning policies have otherwise dictated siting choices, provision should be made for the possibility of siting each of the listed essential public facilities somewhere within each jurisdiction's planning area.
(4) For the purposes of making the threshold determination on whether a proposal presents siting difficulties, the regulations should specify a method for publicizing applications for siting essential public facilities and for soliciting initial comment on the site(s) proposed. The regulations should describe how and by whom the threshold decision will be made.
(5) For proposals involving siting difficulties, the regulations should:
(a) Provide requirements for notice to other interested jurisdictions, and for public participation in the siting decision;
(b) Consistent with county-wide planning policies, require an evaluation of feasible alternative sites and of equity in geographical distribution;
(c) When appropriate interlocal agreements have been made, provide for an interjurisdictional process for facilities of a county-wide, regional or statewide nature;
(d) Call for an evaluation of the extent to which design features or operational conditions can eliminate or reduce unwanted project impacts;
(e) Where appropriate, establish incentives or require amenities for siting in particular areas;
(f) Include in criteria for siting decisions a consideration of the need for the particular facility in light of established level of service standards or planning assumptions.
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-840, filed 8/11/93, effective 9/11/93; 92-23-065, § 365-195-840, filed 11/17/92, effective 12/18/92.]
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365-195-845
Permit process.
The development regulations of planning jurisdictions should include provisions addressing the general procedures for processing applications for development, designed to promote timeliness, fairness and predictability.
(l) Centralized processing. Consideration should be given to the establishment of a master permit or centralized permit process which would allow an applicant to apply for all needed approvals at once and for the simultaneous processing by the local jurisdiction of all aspects of project approval.
(2) Time limits. Consistent with the requirements of SEPA, consideration should be given to adopting self-imposed permit processing deadlines, so that applicants will be able to plan with greater certainty in most cases.
(3) Fast tracking. Consistent with fairness, consideration should be given to expedited permit procedures for developments which include features which the planning jurisdiction particularly wishes to encourage. An example might be the inclusion of affordable housing in a residential development project.
(4) Vertical integration. In designing permit programs planning entities should review the permit requirements of regional, state and federal agencies on the same subjects and, working with those agencies, attempt to coordinate processing in order to avoid overlapping reviews and unnecessary time delays.
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-845, filed 8/11/93, effective 9/11/93.]
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365-195-850
Impact fees.
(1) Counties and cities planning under the act are authorized to impose impact fees on development activity as part of the financing for public facilities. However, the financing for system improvements to serve new development must provide a balance between impact fees and other sources of public funds and cannot rely solely on impact fees.
(2) The decision to use impact fees should be specifically implemented through development regulations. The impact fees:
(a) Shall only be imposed for system improvements that are reasonably related to the new development. "System improvements" (in contrast to "project improvements") are public facilities included in the capital facilities plan and designed to provide service to service areas within the community at large;
(b) Shall not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development; and
(c) Shall be used for system improvements that will reasonably benefit the new development.
The implementing regulation should call for a specific finding on all three of the above limitations whenever an impact fee is imposed.
(3) Impact fees may be collected and spent only for the following capital facilities owned or operated by government entities: Public streets and roads; publicly owned parks, open space, and recreation facilities; school facilities; and fire protection facilities in jurisdictions that are not part of a fire district. These facilities must have been addressed in a capital facilities plan element which identifies:
(a) Deficiencies in public facilities serving existing development and the means by which existing deficiencies will be eliminated within a reasonable period of time;
(b) Additional demands placed on existing public facilities by new development; and
(c) Additional public facility improvements required to serve new development.
(4) The local ordinance by which impact fees are imposed shall strictly conform to the provisions of RCW 82.02.060. The department recommends that jurisdictions include the authorized exemption for low-income housing.
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-850, filed 8/11/93, effective 9/11/93.]
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365-195-855
Protection of private property.
In the drafting of development regulations, consideration should be given to the attorney general's process of evaluation issued pursuant to RCW 36.70A.370, to assure that governmental actions do not result in an unconstitutional taking of private property. Procedures for avoiding takings, such as variances or exemptions, should be built into the overall regulatory scheme.
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-855, filed 8/11/93, effective 9/11/93.]
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365-195-860
Housing for persons with handicaps.
No county or city planning under the act may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as defined in the federal fair housing amendments of 1988 (42 U.S.C. Sec. 3602).
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-860, filed 8/11/93, effective 9/11/93.]
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365-195-865
Supplementing, amending and monitoring.
(1) New development regulations may be adopted from time to time as the need for supplementing the initial implementation strategy becomes apparent. However, because development regulations must be consistent with the comprehensive plans, substantive amendments to such regulations will frequently need to be accompanied by a comprehensive plan amendment. Since comprehensive plans can be amended only once a year (except in emergencies), consideration of significant changes in the land use management scheme will, by and large, become an annual affair.
(2) Cities and counties should institute an annual review of growth management implementation on a systematic basis. To aid in this process, planning jurisdictions should consider establishing a growth management monitoring program designed to measure and evaluate the progress being made toward accomplishing the act's goals and the provisions of the comprehensive plan. This program should be integrated with provisions for continuous public involvement. (See WAC 365-195-600 (2)(b).)
[Statutory Authority: RCW 36.70A.190 (4)(b). 93-17-040, § 365-195-865, filed 8/11/93, effective 9/11/93.]
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365-195-900
Background and purpose.
(1) Counties and cities planning under RCW 36.70A.040 are subject to continuing review and evaluation of their comprehensive land use plan and development regulations. Every five years they must take action to review and revise their plans and regulations, if needed, to ensure they comply with the requirements of the Growth Management Act. RCW 36.70A.130.
(2) Counties and cities must include the "best available science" when developing policies and development regulations to protect the functions and values of critical areas and must give "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries. RCW 36.70A.172(1). The rules in WAC 365-195-900 through 365-195-925 are intended to assist counties and cities in identifying and including the best available science in newly adopted policies and regulations and in this periodic review and evaluation and in demonstrating they have met their statutory obligations under RCW 36.70A.172(1).
(3) The inclusion of the best available science in the development of critical areas policies and regulations is especially important to salmon recovery efforts, and to other decision-making affecting threatened or endangered species.
(4) These rules are adopted under the authority of RCW 36.70A.190 (4)(b) which requires the department of community, trade, and economic development (department) to adopt rules to assist counties and cities to comply with the goals and requirements of the Growth Management Act.
[Statutory Authority: RCW 36.70A.190 (4)(b). 01-08-056, § 365-195-900, filed 4/2/01, effective 5/3/01; 00-16-064, § 365-195-900, filed 7/27/00, effective 8/27/00.]
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365-195-905
Criteria for determining which information is the "best available science."
(1) This section provides assessment criteria to assist counties and cities in determining whether information obtained during development of critical areas policies and regulations constitutes the "best available science."
(2) Counties and cities may use information that local, state or federal natural resource agencies have determined represents the best available science consistent with criteria set out in WAC 365-195-900 through 365-195-925. The department will make available a list of resources that state agencies have identified as meeting the criteria for best available science pursuant to this chapter. Such information should be reviewed for local applicability.
(3) The responsibility for including the best available science in the development and implementation of critical areas policies or regulations rests with the legislative authority of the county or city. However, when feasible, counties and cities should consult with a qualified scientific expert or team of qualified scientific experts to identify scientific information, determine the best available science, and assess its applicability to the relevant critical areas. The scientific expert or experts may rely on their professional judgment based on experience and training, but they should use the criteria set out in WAC 365-195-900 through 365-195-925 and any technical guidance provided by the department. Use of these criteria also should guide counties and cities that lack the assistance of a qualified expert or experts, but these criteria are not intended to be a substitute for an assessment and recommendation by a qualified scientific expert or team of experts.
(4) Whether a person is a qualified scientific expert with expertise appropriate to the relevant critical areas is determined by the person's professional credentials and/or certification, any advanced degrees earned in the pertinent scientific discipline from a recognized university, the number of years of experience in the pertinent scientific discipline, recognized leadership in the discipline of interest, formal training in the specific area of expertise, and field and/or laboratory experience with evidence of the ability to produce peer-reviewed publications or other professional literature. No one factor is determinative in deciding whether a person is a qualified scientific expert. Where pertinent scientific information implicates multiple scientific disciplines, counties and cities are encouraged to consult a team of qualified scientific experts representing the various disciplines to ensure the identification and inclusion of the best available science.
(5) Scientific information can be produced only through a valid scientific process. To ensure that the best available science is being included, a county or city should consider the following:
(a) Characteristics of a valid scientific process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government's regulatory decisions and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the public participation process is reliable scientific information, a county or city should determine whether the source of the information displays the characteristics of a valid scientific process. The characteristics generally to be expected in a valid scientific process are as follows:
1. Peer review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The criticism of the peer reviewers has been addressed by the proponents of the information. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed.
2. Methods. The methods that were used to obtain the information are clearly stated and able to be replicated. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to assure their reliability and validity.
3. Logical conclusions and reasonable inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained.
4. Quantitative analysis. The data have been analyzed using appropriate statistical or quantitative methods.
5. Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge.
6. References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.
(b) Common sources of scientific information. Some sources of information routinely exhibit all or some of the characteristics listed in (a) of this subsection. Information derived from one of the following sources may be considered scientific information if the source possesses the characteristics in Table 1. A county or city may consider information to be scientifically valid if the source possesses the characteristics listed in (a) of this subsection. The information found in Table 1 provides a general indication of the characteristics of a valid scientific process typically associated with common sources of scientific information.
Table 1 CHARACTERISTICS
Peer
review Methods Logical
conclusions
&
reasonable
inferences Quantitative
analysis Context References
SOURCES OF SCIENTIFIC INFORMATION
A. Research. Research data collected and analyzed as part of a controlled experiment (or other appropriate methodology) to test a specific hypothesis.
X
X
X
X
X
X
B. Monitoring. Monitoring data collected periodically over time to determine a resource trend or evaluate a management program.
X
X
Y
X
X
C. Inventory. Inventory data collected from an entire population or population segment (e.g., individuals in a plant or animal species) or an entire ecosystem or ecosystem segment (e.g., the species in a particular wetland).
X
X
Y
X
X
D. Survey. Survey data collected from a statistical sample from a population or ecosystem.
X
X
Y
X
X
E. Modeling. Mathematical or symbolic simulation or representation of a natural system. Models generally are used to understand and explain occurrences that cannot be directly observed.
X
X
X
X
X
X
F. Assessment. Inspection and evaluation of site-specific information by a qualified scientific expert. An assessment may or may not involve collection of new data.
X
X
X
X
G. Synthesis. A comprehensive review and explanation of pertinent literature and other relevant existing knowledge by a qualified scientific expert.
X
X
X
X
X
H. Expert Opinion. Statement of a qualified scientific expert based on his or her best professional judgment and experience in the pertinent scientific discipline. The opinion may or may not be based on site-specific information.
X
X
X
X = characteristic must be present for information derived to be considered scientifically valid and reliable
Y = presence of characteristic strengthens scientific validity and reliability of information derived, but is not essential to ensure scientific validity and reliability
(c) Common sources of nonscientific information. Many sources of information usually do not produce scientific information because they do not exhibit the necessary characteristics for scientific validity and reliability. Information from these sources may provide valuable information to supplement scientific information, but it is not an adequate substitute for scientific information. Nonscientific information should not be used as a substitute for valid and available scientific information. Common sources of nonscientific information include the following:
(i) Anecdotal information. One or more observations which are not part of an organized scientific effort (for example, "I saw a grizzly bear in that area while I was hiking").
(ii) Nonexpert opinion. Opinion of a person who is not a qualified scientific expert in a pertinent scientific discipline (for example, "I do not believe there are grizzly bears in that area").
(iii) Hearsay. Information repeated from communication with others (for example, "At a lecture last week, Dr. Smith said there were no grizzly bears in that area").
(6) Counties and cities are encouraged to monitor and evaluate their efforts in critical areas protection and incorporate new scientific information, as it becomes available.
[Statutory Authority: RCW 36.70A.190 (4)(b). 00-16-064, § 365-195-905, filed 7/27/00, effective 8/27/00.]
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365-195-910
Criteria for obtaining the best available science.
(1) Consultation with state and federal natural resources agencies and tribes can provide a quick and cost-effective way to develop scientific information and recommendations. State natural resource agencies provide numerous guidance documents and model ordinances that incorporate the agencies' assessments of the best available science. The department can provide technical assistance in obtaining such information from state natural resources agencies, developing model GMA-compliant critical areas policies and development regulations, and related subjects. The department will make available to interested parties a current list of the best available science determined to be consistent with criteria set out in WAC 365-195-905 as identified by state or federal natural resource agencies for critical areas.
(2) A county or city may compile scientific information through its own efforts, with or without the assistance of qualified experts, and through state agency review and the Growth Management Act's required public participation process. The county or city should assess whether the scientific information it compiles constitutes the best available science applicable to the critical areas to be protected, using the criteria set out in WAC 365-195-900 through 365-195-925 and any technical guidance provided by the department. If not, the county or city should identify and assemble additional scientific information to ensure it has included the best available science.
[Statutory Authority: RCW 36.70A.190 (4)(b). 00-16-064, § 365-195-910, filed 7/27/00, effective 8/27/00.]
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365-195-915
Criteria for including the best available science in developing policies and development regulations.
(1) To demonstrate that the best available science has been included in the development of critical areas policies and regulations, counties and cities should address each of the following on the record:
(a) The specific policies and development regulations adopted to protect the functions and values of the critical areas at issue.
(b) The relevant sources of best available scientific information included in the decision-making.
(c) Any nonscientific information -- including legal, social, cultural, economic, and political information -- used as a basis for critical area policies and regulations that depart from recommendations derived from the best available science. A county or city departing from science-based recommendations should:
(i) Identify the information in the record that supports its decision to depart from science-based recommendations;
(ii) Explain its rationale for departing from science-based recommendations; and
(iii) Identify potential risks to the functions and values of the critical area or areas at issue and any additional measures chosen to limit such risks. State Environmental Policy Act (SEPA) review often provides an opportunity to establish and publish the record of this assessment.
(2) Counties and cities should include the best available science in determining whether to grant applications for administrative variances and exemptions from generally applicable provisions in policies and development regulations adopted to protect the functions and values of critical areas. Counties and cities should adopt procedures and criteria to ensure that the best available science is included in every review of an application for an administrative variance or exemption.
[Statutory Authority: RCW 36.70A.190 (4)(b). 00-16-064, § 365-195-915, filed 7/27/00, effective 8/27/00.]
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365-195-920
Criteria for addressing inadequate scientific information.
Where there is an absence of valid scientific information or incomplete scientific information relating to a county's or city's critical areas, leading to uncertainty about which development and land uses could lead to harm of critical areas or uncertainty about the risk to critical area function of permitting development, counties and cities should use the following approach:
(1) A "precautionary or a no risk approach," in which development and land use activities are strictly limited until the uncertainty is sufficiently resolved; and
(2) As an interim approach, an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions achieve their objectives. Management, policy, and regulatory actions are treated as experiments that are purposefully monitored and evaluated to determine whether they are effective and, if not, how they should be improved to increase their effectiveness. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. To effectively implement an adaptive management program, counties and cities should be willing to:
(a) Address funding for the research component of the adaptive management program;
(b) Change course based on the results and interpretation of new information that resolves uncertainties; and
(c) Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting critical areas protection and anadromous fisheries.
[Statutory Authority: RCW 36.70A.190 (4)(b). 00-16-064, § 365-195-920, filed 7/27/00, effective 8/27/00.]
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365-195-925
Criteria for demonstrating "special consideration" has been given to conservation or protection measures necessary to preserve or enhance anadromous fisheries.
(1) RCW 36.70A.172(1) imposes two distinct but related requirements on counties and cities. Counties and cities must include the "best available science" when developing policies and development regulations to protect the functions and values of critical areas, and counties and cities must give "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries. Local governments should address both requirements in RCW 36.70A.172(1) when developing their records to support their critical areas policies and development regulations.
(2) To demonstrate compliance with RCW 36.70A.172(1), a county or city adopting policies and development regulations to protect critical areas should include in the record evidence that it has given "special consideration" to conservation or protection measures necessary to preserve or enhance anadromous fisheries. The record should be developed using the criteria set out in WAC 365-195-900 through 365-195-925 to ensure that conservation or protection measures necessary to preserve or enhance anadromous fisheries are grounded in the best available science.
(3) Conservation or protection measures necessary to preserve or enhance anadromous fisheries include measures that protect habitat important for all life stages of anadromous fish, including, but not limited to, spawning and incubation, juvenile rearing and adult residence, juvenile migration downstream to the sea, and adult migration upstream to spawning areas. Special consideration should be given to habitat protection measures based on the best available science relevant to stream flows, water quality and temperature, spawning substrates, instream structural diversity, migratory access, estuary and nearshore marine habitat quality, and the maintenance of salmon prey species. Conservation or protection measures can include the adoption of interim actions and long-term strategies to protect and enhance fisheries resources.
[Statutory Authority: RCW 36.70A.190 (4)(b). 00-16-064, § 365-195-925, filed 7/27/00, effective 8/27/00.]