Shoreline Vegetation: What does WAC 173-26-221 really say?

The Department of Ecology’s shoreline master program guidelines explicitly state that vegetation conservation standards do not apply retroactively to existing uses and structures. The relevant section of the Washington Administrative Code (WAC) is quoted below, and it begins with another key phrase, “Like other master program provisions….”

Bainbridge Shoreline Homeowners has been advised by legal council that many elements of the proposed draft of our SMP Update go far beyond the requirements of the WAC and violate state law in a number of key areas. It is our sincere hope that these errors are corrected by the Planning Commission and City Council before new regulations are enacted and costly litigation further drains community resources.

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WAC 173-26-221 General master program provisions.

(5) Shoreline vegetation conservation.

(a) Applicability.

Vegetation conservation includes activities to protect and restore vegetation along or near marine and freshwater shorelines that contribute to the ecological functions of shoreline areas. Vegetation conservation provisions include the prevention or restriction of plant clearing and earth grading, vegetation restoration, and the control of invasive weeds and nonnative species.

Unless otherwise stated, vegetation conservation does not include those activities covered under the Washington State Forest Practices Act, except for conversion to other uses and those other forest practice activities over which local governments have authority. As with all master program provisions, vegetation conservation provisions apply even to those shoreline uses and developments that are exempt from the requirement to obtain a permit. Like other master program provisions, vegetation conservation standards do not apply retroactively to existing uses and structures, such as existing agricultural practices.

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Additional reference:

WAC 173-26-191 Master program contents.

(2) (a) (iii) (A) Statement of applicability.

… While the master program is a comprehensive use regulation applicable to all land and water areas within the jurisdiction described in the act, its effect is generally on future development and changes in land use. Local government may find it necessary to regulate existing uses to avoid severe harm to public health and safety or the environment and in doing so should be cognizant of constitutional and other legal limitations on the regulation of private property. In some circumstances existing uses and properties may become non-conforming with regard to the regulations and master programs should include provisions to address these situations in a manner consistent with achievement of the policy of the act and consistent with constitutional and other legal limitations.

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