AGO 1973 No. - Jul 5 1973
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF NATURAL RESOURCES ‑- SHORELINES MANAGEMENT ACT OF 1971 ‑- TIMBER ‑- STATE LANDS
(1) In order to engage in the logging of timber within "shorelines of the state" as that term is used in chapter 90.58 RCW, the Shorelines Management Act of 1971, a person will be required to obtain a permit under RCW 90.58.140 (2) under certain factual circumstances.
(2) The Shorelines Management Act of 1971 applies to the activities of the state department of natural resources on state‑owned lands under its administrative jurisdiction where such lands are within the "shorelines of the state."
- - - - - - - - - - - - -
July 5, 1973
Honorable C. Brent Nevin
Vancouver, Washington 98660
Cite as: AGLO 1973 No. 73
By letter previously acknowledged you requested the opinion of this office on two questions which we have paraphrased as follows:
(1) In order to engage in the logging of timber within "shorelines of the state" as that term is used in chapter 90.58 RCW, the Shorelines Management Act of 1971, is a person required to obtain a permit under RCW 90.58.140 (2)?
(2) Does the Shorelines Management Act of 1971 apply to the activities of the State Department of Natural Resources on state‑owned lands under its administrative jurisdiction where such lands are within the "shorelines of the state"?
We answer question (1) in the manner set forth in our analysis and question (2) in the affirmative.
Chapter 90.58 RCW codifies the provisions of chapter 286, Laws of 1971, Ex. Sess., the "Shorelines Management Act of 1971," as amended by § 1, chapter 53, Laws of 1972, Ex. Sess. This measure was enacted by the legislature as an alternative to Initiative No. 43 ‑ a proposal previously submitted to the legislature pursuant to Article II, § 1 of the Washington State Constitution. In accordance with that constitutional provision the initiative and its alternative were placed on the ballot for consideration by the electorate at the state's general election of November 7, 1972, at which election the alternative was approved.
[[Orig. Op. Page 2]]
Implementation of this new act is provided for through a combination of efforts by state and local governments. RCW 90.58.050 describes these governmental relationships as follows:
"This chapter establishes a cooperative program of shoreline management between local government and the state. Local government shall have the primary responsibility for initiating and administering the regulatory program of this chapter. The department shall act primarily in a supportive and review capacity with primary emphasis on insuring compliance with the policy and provisions of this chapter."1/
RCW 90.58.040, the section immediately preceding this section, describes the general geographic coverage of the act as applying to "shorelines of the state." By RCW 90.58.030 (2) (c) this phrase is defined as the "total of all 'shoreline' and 'shorelines of state‑wide [[statewide]]significance' within the state . . ." The term "shorelines" is then defined in RCW 90.58.030 (2) (d) as including:
". . . all of the water areas of the state, including reservoirs, and their associated wetlands, together with the lands underlying them; except (i) shorelines of state‑wide [[statewide]]significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;"
Likewise, the term "shorelines of state‑wide [[statewide]]significance" is defined by RCW 90.58.030 (2) (e) as meaning:
[[Orig. Op. Page 3]]
"(i) The area between the ordinary high water mark and the western boundary of the state from Cape Disappointment on the south to Cape Flattery on the north, including harbors, bays, estuaries, and inlets;
"(ii) Those areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca between the ordinary high water mark and the line of extreme low tide as follows:
"(A) Nisqually Delta ‑ from DeWolf Bight to Tatsolo Point,
"(B) Birch Bay ‑ from Point Whitehorn to Birch Point,
"(C) Hood Canal ‑ from Tala Point to Foulweather Bluff,
"(D) Skagit Bay and adjacent area ‑ from Brown Point to Yokeko Point, and
"(E) Padilla Bay ‑ from March Point to William Point;
"(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide;
"(iv) Those lakes, whether natural, artificial or a combination thereof, with a surface acreage of one thousand acres or more measured at the ordinary high water mark;
"(v) Those natural rivers or segments thereof as follows:
"(A) Any west of the crest of the Cascade range downstream of a point where the mean annual flow is measured at one thousand cubic feet per second or more,
"(B) Any east of the crest of the Cascade range downstream of a point where the annual flow is measured at two hundred cubic feet per second or more, or [[Orig. Op. Page 4]] those portions of rivers east of the crest of the Cascade range downstream from the first three hundred square miles of drainage area, whichever is longer;"
"Wetlands" or "wetland areas" as used in these two definitions are defined by RCW 90.58.030 (2) (f) as meaning:
". . . those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; and all marshes, bogs, swamps, floodways, river deltas, and flood plains 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) (f)).2/
You have first asked for our opinion as to whether a person, in order to engage in the logging of timber within the "shorelines of this state," is required to obtain a permit under so much of RCW 90.58.140 (2) as provides that:
"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."3/
[[Orig. Op. Page 5]]
In considering this question we note, first, the following provisions of RCW 90.58.150:
"With respect to timber situated within two hundred feet abutting landward of the ordinary high water mark within shorelines of state‑wide [[statewide]]significance, the department or local government shall allow only selective commercial timber cutting, so that no more than thirty percent of the merchantable trees may be harvested in any ten year period of time: Provided, That other timber harvesting methods may be permitted in those limited instances where the topography, soil conditions or silviculture practices necessary for regeneration render selective logging ecologically detrimental: Provided further, That clear cutting of timber which is solely incidental to the preparation of land for other uses authorized by this chapter may be permitted."
This section, we note, deals only with the criteria for timber cutting practices within shorelines of state‑wide [[statewide]]significance as defined above. It has no applicability to a determination with regard to requirements for obtaining a permit under RCW 90.58.140 (2) prior to initiation of a logging project.
A permit is required to be obtained by this latter section prior to the undertaking of any action which constitutes a "substantial development." This term is defined in RCW 90.58.030 (3) (e) as:
". . . 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; . . ."
RCW 90.58.030 (3) (d), in turn, defines the word "development" as any:
". . . 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 [[Orig. Op. Page 6]] surface of the waters overlying lands subject to this chapter at any state of water level;"
From these definitions it will readily be seen that the answer to your question, in any given case, will be dependent upon all of the facts involved. Whether a particular logging project is a development within this definition will depend upon the overall nature and scope of the specific project.
In our view the act of cutting a tree, by itself, would not constitute a development ‑ unless, of course, the cutting of that tree, by and of itself, interferes with the normal public use of the waters or shorelines of the state. Thus, a logging project which consists of cutting timber and thereafter removing the same by a procedure which involves no significant construction, dredging, drilling, dumping, filling, removal of sand, gravel or minerals, bulkheading, driving of piling, or the like, would not constitute a "development," ‑ and thus would not be a "substantial development," ‑‑- irrespective of the overall costs of the activity. One example of such a logging operation which would, for this reason, not constitute a substantial development would be a timber harvesting operation in which a helicopter or some other airborne hauling device is used to remove the cut timber from the scene of the operation.
On the other hand, we would think that any logging project which includes, as an integral and necessary part or consequence of the timber cutting and removal process, such activities as the constructtion of roads, bridges, trails and loading facilities would, potentially, be a "substantial development" within the meaning of the subject act. Thus, for example, if in order to cut and remove timber from a given area it is necessary to construct roads and trails into the area, and in the construction of such roads or trails any substantial amount of dredging, dumping, filling or removal of sand, gravel or minerals is involved, then, although the timber cutting itself would not constitute a substantial development, the accompanying road construction would ‑ assuming that at least of portion thereof takes place within the [[Orig. Op. Page 7]] "shorelines of the state" as above defined.4/ Similarly, if the logging operation were to be such as would interfere with the "normal public use" of the surface waters or shorelines of the state covered by the act, a substantial development, requiring the issuance of a permit under RCW 90.58.140 (2) would, likewise, be involved.
Accordingly, our ultimate answer to your first question must be, as above stated, that unless it involves, by itself, an interference with the public's use of the surface waters or shorelines of the state covered by the act, the mere cutting of timber will not constitute a "substantial development" under the Shorelines Management Act. However, irrespective of this factor, whenever the cutting and removal of such timber will involve such developmental activities as road construction, then, in all probability, those activities will cause the project to become a substantial development within the meaning of the act where the total cost exceeds one thousand dollars.
Your other question is whether the Shorelines Management Act of 1971 applies to the activities of the State Department of Natural Resources on state‑owned lands under its administrative jurisdiction where such lands are within the shorelines of the state as above defined.
In responding to this question there is no need for such qualification on the basis of particular facts as was necessary in answering question (1), supra. RCW 90.58.280, codifying § 28 of the 1971 act here in question, expressly states that:
"The provisions of this chapter shall be applicable to all agencies of state government, counties, and public and municipal corporations and to all shorelines of the state owned or admistered by them."
[[Orig. Op. Page 8]] Without doubt the Department of Natural Resources is an agency of state government within the meaning of this statute; and thus it follows that all of the provisions of this act are applicable to this department and to all state‑owned lands administered by it. Your second question, therefore, is answerable in the affirmative.
We trust the foregoing will be of assistance to you.
Very truly yours,
CHARLES B. ROE, JR.
Senior Assistant Attorney General
*** FOOTNOTES ***
1/"Department" as used in RCW 90.58.050 refers to the Department of Ecology. See RCW 90.58.030 (1) (a).
2/The Department of Ecology has, by rule, designated the specific location of these wetlands in chapter 173-22 WAC.
3/The "government entity having administrative jurisdiction" is a local government ‑ a county, city or town. See RCW 90.58.140 (3) and RCW 90.58.030 (1) (c). For certain exemptions to the permit requirements of RCW 90.58.140 (2) based on types of projects see RCW 90.58.030 (3) (e) (i) through (iv). See also RCW 90.58.140 (9). The act contains no exemption from the requirements of RCW 90.58.140 (2) based on the nature of the individual proposing a substantial development.
4/In a situation where part of an interrelated and interdependent project is within and part without the "shorelines of the state" and a permit is required for substantial development within the shorelines of the state, the Shorelines Management Act may potentially prohibit timber cutting on any portion of the project until full compliance with the act is obtained. See, Merkel, et al. v. Port of Brownsville, et al., Court of Appeals No. 956-II (April 27, 1973).