|Understanding the SMA if you are NOT a
by: Rep. Jim Buck (R-24)
Review of WAC173-26, Shorelines Management Act Revisions
One of the most difficult things a new legislator has to learn is how read legalese. Legalese frustrates the ordinary citizen, but unfortunately it is not going away. This paper is my attempt to provide the citizens of Washington with an understandable document that explains the Shorelines Management Act (SMA).
t is a good news - bad news proposition.
The good news is that an understandable document can be created by grouping different sections of the law in a sequence which makes sense.
The bad news is that to do so requires reproducing most of the law. That is a lot of reading. But reproducing the law in italics gives every reader, regardless of viewpoint, the ability to see that my comments are in context with the law adopted by the Legislature in 1971. So, please be patient. It is imperative that informed citizens read and understand the law, if they are to effect changes.
This paper deals with two types of law. The first is the Revised Code of Washington or RCW. The RCWs are laws passed by the Legislature and provide legislative instructions to the various state agencies for how they are to carry out mandated programs. RCWs can only be created or changed by the Legislature or by a vote of the people when they pass a ballot measure. The public hearing process for RCW changes occurs before the Legislature, unless the RCW change is in the form of an initiative or referendum. The second type of law is contained in the Washington Administrative Code or WAC. WACs are rules written by state agencies to guide implementation of an RCW. They must be consistent with the legislative intent of the RCW and can not exceed the authority granted to the agency by the Legislature. Most changes to WAC must undergo a public hearing process before the people of the state.
Legalese is the science of words. It appears the law is tied up in definitions, but there is a good reason for that. Laws mean exactly what they say and there are few words contained in a law that aren't there for a specific reason. At first glance, this may be frustrating for the citizen but do we really want laws that leave the government the choice of what they will do or won't do? Of course not. Laws such as that lead to favoritism and corruption, so great effort is taken to say exactly what is meant. There are three words in law which are extremely important. They are shall, should and may. Shall uses an imperative voice and means the Legislature has determined that an action by an agency must be done. Should means that the Legislature has determined that the particular action by an agency is required, unless there is a compelling reason against doing it. May indicates that the Legislature has given the agency the authority to determine that a particular action is acceptable, as long as it meets the provisions of the law.
As you read through the SMA, be careful to watch for the way in which these three words are used. The letter of the law and how it applies to you depends on how these words are used and who uses them.
RCW 90.58.900 injects another variable into interpretation of the letter of the law. In that section, the Legislature exempted SMA "from the rule of strict construction and said the law shall be liberally construed to give full effect to the objectives and purposes to which it was enacted." This means the Legislature wanted the Department of Ecology (DOE) to make sure the policy was applied and that DOE has a greater discretion to interpret the law than it would under the rule of strict construction. This does not mean DOE can do whatever it wants. They still must stay within the intent of the policy expressed in RCW 90.58.020.
In order for a citizen to change a law they must first understand what the law says and how it affects them. If they are totally unhappy with the law they can try to do away with it or they can try to change it to fit new circumstances.
Sometimes, as in this case, a government agency will try to revise a rule. It may be possible for citizens to stop the revision, but we have to do several things first. We have to know if the Legislature gave the agency the authority to change the law and we have to know if the agency's changes continue to meet the purpose for which the law was enacted. If either of these circumstances are not present, the changes can be challenged because according to our state Constitution only the Legislature can make law. If the agency has the authority to make the change and the change fits legislative intent, we still have an opportunity to make changes through our public processes. If all of this fails and the agency insists on making the change in spite of public opposition, the voters have the ability to elect new representatives who will address the problem.
Successful opposition or support of a piece of legislation requires that specific issues be addressed. For instance, an advocate will get much further by saying, "I believe Section 4 of WAC 173-26-210 effectively ignores the legislative intent to permit planning for and fostering all reasonable and appropriate uses of shorelines" then the advocate will get by saying, "this is an unconstitutional taking of private property." The person may be right, BUT in our system only a court can decide constitutionality.
This is a complicated issue, so please take the time to read about it. This is how I read law in my job as a representative and I hope it is helpful to you.
The Shorelines Management Act
The SMA was approved by the Legislature in 1971 and placed on the ballot in 1972 as Initiative 43B. It was an alternative to an Initiative to the Legislature which became Initiative 43. The people of Washington at the 1972 general election voted to accept Alternative Measure 43B. It became RCW 90.58.
Purpose of this Paper
Early in 1999, DOE released a draft of a revision of WAC173-26, DOE rules for implementing the SMA of 1972. The revision has created a growing public outcry about, what is seen by many as, a huge government invasion of property rights. The purpose of this paper is to examine the original SMA to find out what it was intended to do and how it was intended to work. We can then compare it with the actions called for in the 1999 revision to see if the revision continues to meet the legislative intent expressed in the 1972 law. We must also examine the relationship of the SMA to the Growth Management Act (GMA) because the 1995 Regulatory Reform Bill (ESHB1724) requires DOE to periodically review and adopt guidelines consistent with RCW 90.58.100. This will require an examination of the legislative intent of GMA and Regulatory Reform.
This paper will attempt to look at the SMA, GMA and Reg. Reform relationship within the "four corners of the document" as required by the Washington Supreme Court when examining a piece of legislation. That is "an act must be construed as a whole giving effect to all language used, considering all provisions in relation to each other and, if possible, harmonizing all to insure proper construction of each provision." Newsschwander v. Teacher's Retirement System, 94 Wn.2d 701 (1980); in re Piercy, 101 Wn.2d 490, 492 (1984). The courts have stated that "no part of a statute should be deemed inoperative or superfluous unless it is the result of an obvious mistake or error. This requires every word, clause, and sentence of a statute be given effect if possible." Klein v. Pyrodyne Corporation, 117 Wn.2d 1, 13 (1991). Also, "statutes are not interpreted so as to render any portion meaningless, superfluous, or questionable." Addleman at 509; Wright v Engum, 124 Wn.2d 343, 352 (1994).
Contents of RCW
Although the RCW contains a table of contents for the SMA, the following has been produced showing a more detailed description of the various sections. The SMA contains the following sections:
90.58.010 Short title.
What the Legislature Intended in 1971
SMA General Findings
The SMA deals with two types of shorelines. They are "shorelines of state wide significance" and "shorelines of the state." These definitions describe ONLY the location and length of the two different shorelines. There are four definitions which determine the WIDTH of the area effected by the SMA. It is difficult to understand how the law is applied without understanding these definitions. They are ordinary high water mark, shorelands, flood way and wetlands.
- RCW90.58.030(1)(b) defines ordinary high water mark - "on all lakes, streams, and tidal water is the mark that will be found by examining the bed and banks and ascertaining where the presence and actions of waters are so common and usual, and so long continued in ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the DOE: PROVIDED, that in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark of fresh water shall be the line of mean high water."
- RCW90.58.030(2)(f) defines "Shorelands" or "shoreland areas" as "those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology. Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom;"
- RCW90.58.030(2)(g) defines floodway as "those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which floodwaters are carried during periods of flooding that occur at periods of reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegitative ground cover condition. [HOWEVER] the floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state."
- RCW90.58.030(2)(h) and RCW36.70A.030(20) define wetlands as "areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from non-wetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from non-wetland areas to mitigate the conversion of wetlands." NOTE: In 1995, the Legislature added Section 380 to RCW 90.58 and Section 175 to 36.70A. These sections state, "The department shall adopt a manual for the delineation of wetlands under this chapter that implements and is consistent with the 1987 manual in use on January 1, 1995, by the United States corps of army engineers and the United States environmental protection agency. If the corps of engineers and the environmental protection agency adopt changes or a different manual , the department shall consider those changes and adopt rules implementing those changes."
Section 020 is a type of introduction to the SMA and contains four parts. They are the legislative findings, a general policy statement, and policy statements for two categories of state shorelines.
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Summary These laws clearly show the Legislature has given DOE no authority to require environmental retrofit of vegetation or riparian rehabilitation (salmon recovery projects or stream rehabilitation) as a condition of a shoreline master plan and hence a requirement for a property owner.
I am not a lawyer and cannot give legal advice. My background is in construction contract administration. However, the concept of using exact words in contracts applies very well to understanding law. The purpose of this paper is to examine the original SMA and find out what it was intended to do and how it was intended to work. Along the way, we have examined changes made by the Legislature to SMA and related laws that effect it. This provides an up-to-date context for citizens to make informed decisions about the proposed changes.
I used this paper to compare the current SMA RCW with the proposed rules changes contained in draft 173-26 WAC. On August 4, 1999, I sent a letter to the director of the Department of Ecology documenting 10 separate violations of RCW contained in the draft. I requested that adoption of the draft be deferred until the Legislature can examine the issue. A follow up letter, highlighting additional violations, is being drafted.
Our system is supposed to work in the following manner.
You elect the Legislature. The Legislature enacts laws and fund the actions needed for government. The agencies, part of the executive branch, use the money to enforce the laws. You hold the Legislature accountable for the actions of the agencies.
This works well, as long as the agencies do what the law says within the budget the Legislature allocates. If they don't, we are faced with a system accountable to no one, that does whatever it wants and sends us the bill. When this happens, our system breaks down. It is your job as a citizen and voter to make the system work. This requires active and informed participation in your government. Thank you for taking time to read this paper. I hope it is helpful to you.