Chapter § 10.2 SMA Jurisdiction

• Jurisdiction: Washington

§10.2 SMA JURISDICTION

The applicability of the SMA to the shorelines of the state of Washington is discussed below.

(1) Geographical reach of the act

The SMA applies to all "shorelines of the state," which include both "shorelines" and "shorelines of statewide significance." RCW 90.58.030(e), (f). The Act defines "shorelines" as all waters of the state, including reservoirs, and their associated "shorelands," together with the lands underlying them. RCW 90.58.030(2)(e). The definition excludes shorelines on streams with a mean annual flow that is 20 cubic feet per second or less and wetlands associated with such streams, as well as lakes less than 20 acres in size and wetlands associated with such lakes. Id.

Chapter 173-18 WAC delimits the streams and rivers subject to SMA jurisdiction. Chapter 173-20 delimits the lakes subject to SMA jurisdiction.

(a) Shorelines and shorelines of statewide significance

"Shorelines of statewide significance" is a category of shorelines of sufficient importance to mandate a hierarchy of "use preferences" compared to other "shorelines." RCW 90.58.020, .030(2)(e). The designation includes the following:

(1)	The ocean coastline of the state, including bays, seaward from the ordinary high water mark;
(2)	Nisqually Delta, Birch Bay, Hood Canal Skagit Bay, Padilla Bay, between the ordinary high water mark and the line of extreme low tides;
(3)	Puget Sound and the Strait of Juan de Fuca lying below the line of extreme low tide;
(4)	Lakes over 1,000 acres in surface area measured at the ordinary high water mark;
(5)	Segments of rivers west of the Cascades with a mean annual flow of at least 1,000 cubic feet per second; or
(6)	Segments of rivers east of the crest of the Cascades, with a mean annual flow of at least 200 cubic feet per second or; downstream from the first 300 square miles of drainage area, whichever is longer; and
(7)	Shorelands associated with these shorelines.

RCW 90.58.030(2)(f). "Shorelines of statewide significance" is a category of shorelines of sufficient importance to require more substantial planning and protection. Buechel v. State Dept. of Ecology, 125 Wn.2d 196, 204, 884 P.2d 910 (1994).

(b) Associated shorelands

The upland areas covered by the SMA include the "associated shorelands" of all shoreline areas to which the Act applies. RCW 90.58.030(2)(e). These are defined 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.

RCW 90.58.030(2)(d).

Any county or city may determine what portion of a 100-year floodplain to include in its master program as long as it includes the floodway and adjacent land extending landward 200 feet. RCW 90.58.030(2)(d)(i); WAC 173-22-030(14). Local governments may also extend SMA jurisdiction to land necessary for buffers for critical areas under the GMA as long as the conversion of such lands to nonforest land use is not subjected to additional SMA regulation. RCW 90.58.030(2)(d)(ii); WAC 173-26-221(2)(a)(ii).

Until the amendments of 1995, these upland areas were referred to as "associated wetlands." The 1995 SMA amendments made "wetlands" a subset of "shorelands" and added a new, specific definition to "wetlands." See RCW 90.58.030(2)(h). Thus, "associated shorelands" now embraces "wetlands...associated with" shorelines that are subject to the Act. RCW 90.58.030(2)(d).

"Floodways" means either (1) that area identified in a master program that has been identified in Federal Emergency Management Agency (FEMA) flood insurance maps or floodway maps or (2) those areas within the watercourse upon which flood waters are carried with reasonable regularity. RCW 90.58.030(2)(b).

"‘Wetlands' means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support...a prevalence of vegetation typically adapted for life in saturated soil conditions." RCW 90.58.030(2)(h).

SMPs are required to contain a map of shorelands. WAC 173-22-050. In many cases, the determination of whether wetlands are present on a project site will still be dependent upon a delineation of potential wetlands in accordance with guidance from the Washington State Wetland Identification Manual. See Dep't of Ecology, Pub. No. 96-94, Washington State Wetland Identification and Delineation Manual (Mar. 1997), http://www.ecy.wa.gov/pubs/9694.pdf; WAC 173-22-030.

The area within 200 feet of the ordinary high water mark is not usually mapped; surveying, local staff judgment, or expert opinion may be required to establish the boundary if the vegetation line cannot be located. To assist in the determination of the extent of shorelands covered by the SMA, DOE provided designation criteria, available in WAC 173-22-040. Where vegetation covers soil markings and makes it difficult to ascertain the point at which abutting upland characteristics differ from the shoreline, a biological determination of the ordinary high water mark may be required...