AGO 1974 No. 23 - Nov 13 1974
MINING ‑- SURFACE ‑- CITES AND TOWNS ‑- LICENSES ‑- REGULATION OF SURFACE MINING IN SHORELINE AREAS
If a surface mining operation for which a state permit has been issued under chapter 64, Laws of 1970, constitutes a "development" as defined in § 3 of the shoreline management act of 1971 (RCW 90.58.030) and is inconsistent with the properly formulated master program for the use of shorelines within the city in which it is occurring, as developed in accordance with RCW 90.58.080, such surface mining operation will be prohibited by RCW 90.58.140 if undertaken on those shorelines.
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November 13, 1974
Honorable A. N. "Bud" Shinpoch
State Representative, 11th District
361 Maple Avenue N.E.
Renton, Washington 98055
Cite as: AGO 1974 No. 23
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
Assuming that a surface mining operation for which a state permit has been issued under chapter 64, Laws of 1970, constitutes a "development" as defined in § 3 of the shoreline management act of 1971 (RCW 90.58.030) and is inconsistent with the properly formulated master program for the use of shorelines within the city in which it is occurring, as developed in accordance with RCW 90.58.080, will this surface mining operation be prohibited by RCW 90.58.140 if undertaken on those shorelines?
We answer this question in the affirmative for the reasons set forth in our analysis.
In AGO 1970 No. 23 [[to William A. Gissberg, State Senator on October 27, 1970]], copy enclosed, this office answered [[Orig. Op. Page 2]] two questions regarding the then newly enacted provisions of chapter 64, Laws of 1970, which provides for the regulation of surface mining throughout the state. We advised, first, that on and after the effective date of that act (January 1, 1971) it would not be legal to engage in surface mining, as defined in § 4(1) of the act (now RCW 78.44.010(1)) solely on the basis of a license or permit issued by a county, city or town without also obtaining a permit from the state board of natural resources. Secondly, based upon the legislative history of the act during its processing by the 1970 legislature, we further concluded that a county, city or town may not prohibit an operator to whom a state permit has thus been issued from engaging in surface mining within its jurisdiction in accordance with that permit.
In explaining this latter conclusion, we noted that two alternative versions of a section expressly designed to permit continuing local governmental regulation of surface mining had been before the legislature during its consideration of the measure and that both of these sections had been rejected. We therefore reasoned, on page 6 of our opinion, as follows:
"Had the legislature intended to allow continuing county or city regulation of surface mining, it could easily have manifested this intent by retaining either of the two sections ‑ § 22 of the senate bill or § 21 of the house bill ‑ which were obviously drafted and designed to do just that; however, it did not do so. Therefore, we feel constrained to answer the second question raised by your inquiry, as well, in the negative. After January 1, 1971, an operator may not engage in surface mining without a state permit. But if he obtains such a permit, no county or city may prohibit him from engaging in surface mining in accordance therewith."
While this 1970 act itself has not since been altered by the legislature, another law, chapter 386, Laws of 1971, 1st Ex. Sess., has been enacted which now bears upon the question of local governmental regulation of surface mining. That act, denominated the shoreline management act of 1971, and now codified in chapter 90.58 RCW, [[Orig. Op. Page 3]] established a comprehensive land and water use planning and regulation program for most of the bodies of water of the state and their underlying beds, including all major lakes and streams and all Pacific Ocean waters situated within the state. In addition, the act applies to a strip of lands of not less than 200 feet in width which are adjacent to those water bodies and are known as "wetlands." See, RCW 90.58.030(2)(f). The combined water and land areas thus covered by the act are called "shorelines" in accordance with RCW 90.58.030(2)(d).
A basic substantive provision of this act is RCW 90.58.140 which provides, in pertinent part, that:
"(1) No development shall be undertaken on the shorelines of the state except those which are consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, regulations or master program.
"(2) No substantial development shall be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter.
"A permit shall be granted:
"(a) From June 1, 1971 until such time as an applicable master program has become effective, only when the development proposed is consistent with: (i) The policy of RCW 90.58.020; and (ii) after their adoption, the guidelines and regulations of the department; and (iii) so far as can be ascertained, the master program being developed for the area. In the event the department is of the opinion that any permit granted under this subsection is inconsistent with the policy declared in RCW 90.58.020 or is otherwise not authorized by this section, the department may appeal the issuance of such permit within thirty days to the hearings board upon written notice to the local government and the permittee;
[[Orig. Op. Page 4]]
"(b) After adoption or approval, as appropriate, by the department of an applicable master program, only when the development proposed is consistent with the applicable master program and the policy of RCW 90.58.020.
". . ."
In order to place in focus the precise thrust of this regulatory provision it is necessary to look to certain other expressly defined terms in the shoreline management act. First, RCW 90.58.030(3)(d) defines the term "development" to mean:
". . . a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level;"
A "substantial development," in turn, is defined by RCW 90.58.030(3)(e) to mean (with certain listed exceptions):
". . . any development of which the total cost or fair market value exceeds one thousand dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; . . ."
And lastly (insofar as is here relevant), the term "master program" is defined by RCW 90.58.030(3)(b) as:
". . . the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts or other descriptive material and text, a statement of desired goals and standards developed in accordance with the policies enunciated in RCW 90.58.020;"
[[Orig. Op. Page 5]]
See, also, subsection (2) of RCW 90.58.100 which sets forth the following list of seven "elements" which are to be included in a master program "when appropriate": (1) economic development, (2) public access, (3) recreational, (4) circulation, (5) "A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for housing, business, industry, transportation, agriculture, natural resources, recreation, education, public buildings and grounds, and other categories of public and private uses of the land;" (6) conservation, and (7) historic, cultural, scientific and educational.
The statutory link between this "master program" and the substantive provisions of RCW 90.58.140,supra, is to be found in RCW 90.58.080. This statute, codifying § 8 of the shoreline management act, requires all "local units of government"1/ to develop such programs for the regulation of uses of the shorelines within their boundaries ". . . in a manner consistent with the guidelines adopted . . ." by the state department of ecology under RCW 90.58.060. If they do not, RCW 90.58.070 provides that:
". . . the department shall carry out the requirements of RCW 90.58.080 and adopt a master program for the shorelines of the state within the jurisdiction of the local government."
Finally to be noted before turning to the precise issue raised by your question is RCW 90.58.360, codifying § 36 of the shoreline management act, which provides that:
"Nothing in this chapter shall obviate any requirement to obtain any permit, certificate, license, or approval from any state agency or local government."
By virtue of this last quoted provision, it is quite clear that thefirst portion of AGO 1970 No. 23, supra, remains [[Orig. Op. Page 6]] operative, even in the case of surface mining operations occurring within shoreline areas of the state; i.e., so much thereof as concluded that it is not legal, in view of the provisions of chapter 64, Laws of 1970, to engage in surface mining in this state solely on the basis of a license or permit issued by a county, city or town without also obtaining a permit from the state board of natural resources. The issue which we understand to be raised by your request, however, is whether the second part of this prior opinion, dealing with county or city regulation of state licensed surface mining activities, must be taken to mean that even though a given surface mining operation constitutes a "development" within the meaning of the shoreline management act and is in conflict with the properly formulated master program of the city in which it is situated, that operation may, nevertheless, still proceed on the basis of such a state permit if undertaken within the shorelines of that city.
In thus phrasing the issue, it will be noted, we are assuming the propriety, from the standpoint of the objectives and standards set forth in the shoreline management act itself, of the particular restriction upon surface mining which the master program involved contains; i.e., that it is reasonably related to the achievement of a physical condition ascribed for the shoreline area covered ‑ which physical condition is consistent with the policies of the act as set forth, particularly, in RCW 90.58.020. The question with which your request appears to be concerned is simply that of whether the inclusion of such a restriction at all is barred by the reasoning or result of our prior opinion; and our answer is that it is not.
Most certainly, there is nothing contained within the four corners of the shoreline management act itself that purports to exempt from its regulatory provisions those surface mining operations which have been granted permits by the state board of natural resources under the earlier, 1970, surface mining act ‑ chapter 64, Laws of 1970. Yet it is equally clear that the framers of the later, 1971, act knew how to provide for exemptions when they were intended. See, for example, RCW 90.58.140(8) which states that the holder of a certification from the governor pursuant to chapter 80.50 RCW, relating to thermal power plants,
". . . shall not be required to obtain a [[Orig. Op. Page 7]] [substantial development] permit under this section."
Likewise, subsection (9) of RCW 90.58.140 provides that under certain specified conditions no such permit
". . . shall be required for any development on shorelines of the state included within a preliminary or final plat approved by the applicable state agency or local governmet prior to April 1, 1971, . . ."
Similarly, as we have earlier noted, the definition of "substantial development" in RCW 90.58.030(e) itself contains express exclusions of certain projects, but this listing of excluded projects does not refer in any respect to surface mining.
Secondly, the overall regulatory system provided for in the shoreline management act of 1971 does not merely involve an optional grant of authority to local governments to adopt certain land use regulations ‑ as in the case of such authorizations for local planning and zoning as are contained in chapter 35.63 RCW for cities and towns, and chapter 36.70 RCW for counties. Instead, its new regulatory system establishes, in the words of RCW 90.58.050:
". . . a cooperative program of shoreline management between local government and the state. . . ."
Consistent therewith, the act not merely authorizes but directs every county, city or town having shoreline areas within its boundaries to develop a master program for the regulation of uses of those shorelines (RCW 90.58.080, supra) ‑ or, if it does not, to have such uses regulated, instead, by a master program adopted by the state department of ecology under RCW 90.58.070. Moreover, even in the case of those master programs which are developed by local governments, their effectiveness is dependent upon approval by the department of ecology under RCW 90.58.090.
Likewise, although the permit system for substantial developments which is provided for in RCW 90.58.140(2), supra, is administered locally, the underlying permit [[Orig. Op. Page 8]] requirement is astate requirement ‑ one provided for in a state statute ‑ not merely one imposed by the legislative authority of the county, city or town in the exercise of its discretion.
Thirdly, it must be recalled that our conclusion in AGO 1970 No. 23,supra, respecting local governmental regulation of state license surface mining, wasnot based upon anything expressly contained in chapter 64, Laws of 1970. Instead, as above indicated, it was merely based upon a failure on the part of the legislature to have adopted one or the other of two alternative provisions in the original 1970 bills from which that act emanated that would, if adopted, have disclaimed any intent on the part of the legislature to preclude concurrent local regulation of surface mining.
And finally, there is the fact that the later (1971) shoreline management act is, without question, properly to be categorized as a comprehensive law providing for the regulation of all developments within the shorelines of the state.2/ See, in addition to the various provisions of the act which we have discussed above, the broadly stated legislative findings and declarations of state policy enunciated in § 2, now RCW 90.58.020. Having been adopted later in time than the 1970 surface mining act (chapter 64, Laws of 1970), it may, therefore, be deemed to have amended that earlier act by implication to the extent that there might be any irreconcilable conflict between the two. Accord,Mahler v. Tremper, 40 Wn.2d 405, 243 P.2d 627 (1952), and numerous cases cited therein.
When all of these factors are added together the conclusion seems to us inescapable that any surface mining activities which constitute "developments" within the shorelines of this state are now subject to the regulatory [[Orig. Op. Page 9]] provisions of a shoreline management act even though they are covered by a permit issued by the board of natural resources pursuant to the provisions of chapter 64, Laws of 1970, which were considered by this office in AGO 1970 No. 23, supra. If the legislature had intended otherwise, it could easily have said so in the later act ‑ as it did in the other instances above noted.
We thus answer your question, as above paraphrased, in the affirmative, and trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
CHARLES B. ROE, JR.
Assistant Attorney General
*** FOOTNOTES ***
1/Defined by RCW 90.58.030(1)(c) as:
". . . any county, incorporated city, or town which contains within its boundaries any lands or waters subject to this chapter;"
2/The above noted express exemptions, such as that for thermal power plants under RCW 90.58.140(8), do not exempt those projects from the act, perse, but only from the permit system which the act establishes for "substantial developments," as defined in RCW 90.58.030(3)(e),supra.