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Chapter 1 - Overview: Enforcement and the Shoreline Management Act

The Shoreline Management Act

The Shoreline Management Act (SMA), enacted by the state legislature in 1971, is intended to protect valuable shoreline resources, to plan for and manage uses, to increase opportunities for the public to enjoy state shorelines, and to assure public involvement in decisions about shoreline resources. The SMA regulates most shorelines of the state including marine waters, streams and rivers (with a mean annual flow of 20 cfs or more), lakes and reservoirs or water areas of the state (larger than 20 acres), associated wetlands, and portions of the flood plain. During the past 20 years, the SMA has proven to be an effective tool in protecting and managing shoreline environments.

Local and State Roles under the SMA

The SMA establishes shoreline management as a cooperative effort between the state and local government, with specific roles for each entity.

Local governments are given the primary responsibility for administering the SMA through local Shoreline Master Programs (SMPs). Every county in the state as well as many cities and towns have adopted SMPs to implement the SMA at the local level. Primary responsibilities for enforcement also falls to cities and counties as part of local administration of the SMA.

The Department of Ecology acts in a supportive and review capacity with primary emphasis on providing assistance to local governments and ensuring compliance with the SMP and SMA. Ecology typically defers lead on enforcement actions to local government, but is interested in consistent enforcement of similar violations throughout the state.

Most frequently, Ecology's role in shoreline enforcement is to assist local government. However, it should be noted that the State (through the Attorney General's Office and the Department of Ecology's Shorelands and Environmental Assistance Program) is authorized to enforce shoreline programs if local government is unable or unwilling to take action. In all cases, Ecology informs local government of any action the department is considering concerning shoreline violations within that jurisdiction.

Local Enforcement Programs

Enforcement plays a crucial role in assuring protection of fragile and unique shoreline environments, in preserving public use and enjoyment of shorelines, and in assuring implementation of shoreline use decisions. As in other areas of land use regulation, adoption of shoreline regulation and policies provides no guarantee of public compliance. Landowners and developers may be unaware of SMA or SMP requirements, permit conditions may be ambiguous, leading to unwitting violations, or people may simply choose to proceed with development in disregard of regulations.

Because the SMA is administered by local governments and is implemented through local permitting actions, strong local government enforcement programs are essential to achieving SMA goals and objectives. Local governments invest considerable time and public resources in developing and applying shoreline policies, plans, and regulations. A strong local enforcement program is the insurance policy on this investment in planning.

The size and organization of local shoreline enforcement programs varies widely among cities and counties, as does the division of responsibility among departments. Responsibilities may be divided among planning, permitting, building or code enforcement departments as well as the city attorney or county prosecutor's office.

Local enforcement programs typically encompass a number of functions:

• complaint response;
• inspection;
• investigating violations;
• determining SMA/SMP compliance;
• documenting and record keeping;
• inter-agency coordination;
• determining corrective action or restoration;
• negotiating with violators;
• pursuing enforcement actions;
• providing support for appeals; and
• education of the public and regulated community

Local government responsibility for shoreline enforcement offers a number of advantages. First, a regulatory role in shoreline protection is consistent with the traditional emphasis on local land use control in Washington State. Other land use and environmental laws such as the State Environmental Policy Act (SEPA) and the Growth Management Act also emphasize local decision-making and regulation.

Second, local government is usually in the best position to evaluate compatibility of shoreline use and development with community goals and values. Local government is typically more knowledgeable about the local shoreline environment, development activities, and shoreline use issues, and can better evaluate potential community impacts. Proximity may allow local government to respond more quickly.

Third, the SMA provides local government the opportunity to retain control and to exercise considerable discretion and flexibility in how they attain compliance and meet enforcement obligations of the SMA. If results can be achieved through voluntary informal agreement - assuming consensus among affected parties - there may be no need to pursue formal legal action.

What is Enforcement?

"Enforcement" includes all actions necessary to assure that shoreline uses and activities comply with the intent of the SMA and the local Shoreline Master Program (SMP). A variety of tools - including civil and criminal penalties, cease and desist orders, corrective action orders, requiring that a permit be obtained (after the fact), and permit rescission - are available to local administrators pursuant to SMA statutory authority. SMA enforcement authority can be used independently or in combination with other state or local enforcement authority and procedures. Local SMPs are also important tools, in that they define community goals, policies, and performance standards that should be used to determine the existence or severity of a violation.

Effective enforcement may also involve use of informal methods such as negotiation, mediation, and/or settlements. Depending on circumstances, these methods may be more effective in obtaining voluntary compliance in a reasonable time frame.

Proactive and preventive efforts should also play a role in a shoreline enforcement strategy. A well-designed shoreline master program and clearly written shoreline permits can be helpful in minimizing violations.

Public education also has a role. For example, information programs targeting contractors, developers, and property owners can promote compliance and reduce misunderstandings about the existence or meaning of regulations. Educating citizens about shoreline goals is also important in building community support for shoreline programs. In addition, community awareness that shoreline regulations are consistently and equitably enforced promotes compliance.

Common Shoreline Violations

Local shoreline administrators frequently encounter a variety of enforcement cases. Violations encompass a wide range of activities, actors and issues.

Shoreline violations may be substantive, procedural, or both

Examples of substantive violations include physical harm to the environment, impacts to public shoreline use, and violations of any performance criteria or standard within the SMA or SMP. Substantive violations may be minor, significant or critical.

Examples of procedural violations include failure to obtain a permit, abuse of permit exemptions, failure to comply with requirements for public notice, or improper processing of a permit. Procedural violations are of concern because of the emphasis the SMA places on the public review process. Compliance strategies need to consider both substantive and procedural issues.

In general, SMA violations typically fall into three categories:

• The shoreline activity or development occurs without an SMA permit; the development, use or activity (all or part) may or may not be legal; or
• The shoreline activity or development is exempt from the procedural requirement to obtain an SMA permit (permit exempt), but the activity or development fails to comply with substantive policies or regulations of the Shoreline Master Program; or
• An SMA permit has been obtained for the shoreline use, activity or development, but SMA permit condition(s) are violated.

Commonly encountered violations

Examples include illegal placement of fill in wetlands or waterbodies; improper bulkhead placement or construction; unlawful restriction of public access; illegal timber harvest or rechanneling of a stream or creek. Changes in use or activity may also result in a violation. Examples include changing a mobile home to an RV park, cutting a bank for view or access, obstruction of a floodway or flood plain, or removal of protected vegetation. As summarized above, in addition to potential procedural violations (failure to obtain the SMA permit), the development or activity may involve substantive violations in that the use or activity may not be permittable, or the SMA and SMP provisions may pace restrictions and conditions on the use or activity.

Abuse of exemptions

Abuse or improper claim to permit exemptions (e.g.; single family residential, emergency repair, or agricultural permit exemptions) is another commonly encountered shoreline violation. Examples include construction of a non-owner occupied single family residence or conversion of a garage into a rental cabin; "repair or maintenance" that results in a structure larger than the original structure; and fabrication of emergencies to compensate for poor planning.

Examples of agricultural activities improperly asserted as normal and (permit) exempt farming practices include construction too close to the shoreline, diversions of streams, or encroachment of setbacks. Misuse of permit exemption criteria involves a procedural violation that may be remedied by applying for a permit and observing proper public notice. However, permit exemption abuse may also involve a substantive violation (i.e., the use or activity may not be legal).

Violations of permit conditions

Enforcement action may also be required to address violation(s) of SMA permit conditions. The most common complaint of this type occurs when development does not conform with approved construction plans. However, also of concern, is failure to comply with SMA permit conditions established during the public review and hearing process. Major shoreline projects (residential, industrial, commercial facilities) are frequently approved contingent on compliance with special construction and operational conditions - many applicable for the life of the project or the duration of the permit. Special permit conditions are often established as a means of implementing mitigation measures identified during the SEPA review process. Examples of these permit conditions include mitigation for lost habitat (habitat construction, monitoring, and maintenance); use of best management practices during construction and operation; and dedication, construction, and maintenance of public access improvements.

Violation of SMA permit conditions may occur years after permit issuance and project completion. Periodic review and inspection may be necessary to assure ongoing compliance.