To the jubilation of private property rights advocates statewide, the Washington State Department of Ecology’s (DOE) shorelines rules were invalidated last month by a government panel that said the rules “exceeded the statutory authority of the Shoreline Management Act.”

The Shorelines Hearings Board’s decision is a major blow to DOE — and Gov. Gary Locke, who strongly supported the new rules which would have severely curtailed new development and redevelopment in shoreline areas and beyond. The guidelines, as proposed by DOE and the governor, would have prevented many landowners from building or replacing bulkheads, constructing a home, or even adding to an existing home, near any shorelines in Washington State.

According to Jodi Slavik, general counsel for the Building Industry Association of Washington (BIAW), “This ruling is a major victory for property rights in Washington State. DOE’s new shorelines Guidelines would have prohibited the use of all land within 200 feet of a shoreline on all of Washington State’s river, lakes and streams-impacting over 20,000 square miles of land across the state,” she said. “The guidelines, if implemented, would have represented the largest land grab in Washington State history,” she added.

The Hearings Board decision to invalidate the Guidelines was in response to an appeal filed last year by BIAW and a coalition of local governments, organizations and private property owners. Notably, Kitsap County was not among them.

The coalition challenged both the process and substance of the Guidelines, contending they went well beyond the scope of DOE’s authority granted by Shoreline Management Act (SMA). The appeal charged the Guidelines attempted to implement the federal Endangered Species Act (ESA) through the SMA, and that the Guidelines were developed between DOE and the National Marine Fisheries Service (NMFS), which demanded that federal salmon recovery provisions be included, behind closed doors.

This Guidelines were formulated with no input from those who would be directly impacted, such as landowners and local governments, or from legislators. The appeal contended these provisions were in direct conflict with the SMA and represented major policy changes that can only be enacted by the Legislature. The Hearings Board agreed and rendered the Guidelines invalid.

“The most important facet of this victory is that DOE, an unaccountable state agency, has been stopped from its unauthorized and unacceptable action of writing new shorelines policy, a role expressly reserved for the Legislature,” said Slavik.

The Hearings Board remanded the revised Guidelines back to DOE to be redrafted with the final order — something BIAW views as a victory for its members. It will take DOE several years to draft new Guidelines and complete the procedural requirements including providing documentation of a cost-benefit analysis, implementation plan, and small business economic impact statement. The new Guidelines must then run the gauntlet of public review and comment.

While DOE has not yet announced whether it will appeal, pressure is mounting to accept the ruling. Newspaper editorials statewide have urged DOE to not to do so and draft new Guidelines that do not exceed the state agency’s shorelines authority.
Two prominent local Democrats, State Senator Tim Sheldon (D-Shelton) and Lieutenant Governor Brad Owen (D) have sent letters to Locke asking him to direct DOE to accept the ruling and limit the scope of any new Guidelines to protection of the state’s shorelines not implementation of the ESA.