August 15, 2000 Jennifer M. Belcher Commissioner of Public Lands P.O. Box 47001 Olympia, WA 98504-7001 Dear Commissioner Belcher: This letter accompanies my formal petition requesting that a new rule be developed that regulates residential uses on state-owned aquatic lands. At issue are the actions you have recently taken to evict or cause to be evicted all residential users (except for grand-fathered houseboats) on state-owned aquatic lands. While I believe the department has the right to limit where and how such uses take place - as well as to charge appropriate rent and evict trespassers - I do not believe the department has the right under chapter 79.90 RCW, as it is currently written, to require marinas to evict their residential tenants from state-owned aquatic lands. Furthermore, the department’s actions on marinas are binding and therefore meet the threshold for rule-making under chapter 34.05 RCW. Although a number of policy arguments can be made on both sides of the residential-use issue, I want to focus on the process used by the department for addressing this issue. It is precisely because various interpretations of statutory intent are possible that it is important to develop formal policy for clarifying the appropriate use of state-owned aquatic lands. Such policy should be developed in public forums, such as hearings by the Legislature and the Board of Natural Resources, or rule-making hearings by the department under the Administrative Procedures Act that provide ample opportunity for the airing of views and for debate and discussion. Although clarifying legislation would be preferable, there is no guarantee that such a bill will pass the Legislature next year. Therefore, I am requesting that a new rule be developed and that existing rules be repealed or amended accordingly. State law As you know, the policy developed under the Aquatic Lands Act of 1984 (chapter 79.90 RCW) was to “grandfather” existing houseboats. However, even this relatively non-controversial policy is not explicit in the statute. The only reference to houseboats in chapter 79.90 RCW is in RCW 79.90.465 (2), which says that houseboats are to be considered “water-oriented” uses. Presumably, new houseboats would be prevented from becoming established on state-owned aquatic lands by the inability to obtain a lease from the department. The statute includes no references to residential uses or to “live-aboards” on state-owned aquatic lands, many of whom pay rent to a marina. The law also does not say whether a residential use is defined by the “use” or by the “vessel,” nor does it define terms such as houseboat, house barge, or floating home. And the law does not address the conditions under which a marina may obtain a lease from the department, but clearly defines “moorage” as a water-dependent use. For these reasons, I see no evidence that the Legislature was thinking in terms of residential users on state-owned aquatic lands when it adopted the 1984 legislation. This omission appears to be a tacit acceptance of the status quo, which has always included a number of residential users or public and private aquatic lands. Had the Legislature been contemplating prohibition of residential uses, it would have been more direct and explicit. Furthermore, instead of providing for the eviction of residential uses from state-owned aquatic lands, the Legislature adopted a lease structure to favor some uses over others. The statute specifically provides that non-water dependent uses must be charged lease rates at fair market value. Assuming all residential uses are non-water-dependent (and the law does not say that), such uses are accorded lower priority than other uses, rather than eliminated (RCW 79.90.460(2). Rule-Making Needed The Aquatic Lands Act requires the department to “adopt such rules as are necessary to carry out the purposes of RCW 79.90.450 through 79.90.535...” (RCW 79.90.540). While a few references to residential uses do exist in rule, particularly WAC 332-30-115(4) and WAC 332-30-139(2), these regulations were adopted many years ago, are somewhat contradictory, and do not adequately support the actions recently advocated by the department. For example, the definition of residential use in WAC does not include vessels used as a permanent residence, yet rules affecting marinas and moorages require the department to identify anchorages suitable “for both residential and transient use...” It’s also important to adopt rules in this case because the department’s actions could cause a loss of value in private investments in vessels, houseboats or house barges. As noted in the Real Property Deskbook (p. 15-6, 1996), “Since there [are] virtually no excess moorage slips in the Seattle area- or anywhere else nearby for that matter- the owner of a floating home evicted from its slip face[s] the very real prospect of selling his or her investment for scrap value.” A reading of how a rule is defined (RCW 34.05.010(16)) leads me to believe that an agency action of general applicability that is either binding on a class of persons, such as marinas, and/or that results in the revocation of what are believed by a variety of people to be lawful privileges should be subject to rule-making. Finally, rule-making will provide an opportunity for all of the public to be heard. In conclusion, I am not opposed to limiting the extent of residential use of state-owned aquatic lands. In some cases such uses should be limited or even prohibited. The challenge is to define what a residential use is, and where and under what circumstances it should be allowed. Formal processes exist for all affected parties to make their case, and through which public policy can be made. These processes need to be used. For this reason and the other reasons outlined herein, I request that the department adopt a new rule on residential uses of state-owned aquatic lands. Thank you very much for your attention to this matter. I look forward to your response. Sincerely, Rep. Jim Buck Co-Chair, House Natural Resources Committee Schoesler, Delvin , Dunn, Benson, Ballard, Ericksen, Mielke, Thomas, Esser, Campbell, Kessler, Ballasiotes, Huff, Rockefeller, Anderson, Pennington, Mulliken, Sump, Fortunato, Crouse, Woods, Oke, McCaslin, Morton, Honeyford, Swecker, Sheldon, Rassmussen, Roach