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Harbor Planning and Port Management Agreements: History, legal framework and current issues

Eric D. Johnson Washington Public Ports Association Tom Tanaka Port of Seattle September 2015

The Public Trust Doctrine • Evolved from English common law, derived from

ancient law There is a public ownership interest in the uses of navigable waters and their underlying lands, including: - navigation - commerce - fisheries Probably recreation and maybe environmental quality

Public Trust Doctrine • This public interest • •

cannot be given away or extinguished. Long case law history that varies from state to state Washington’s Constitution recognizes the public’s rights over harbors


Washington’s Constitutional convention deadlocked over what status to give for the territorial harbors and tidelands. Four primary caucuses in the fight: • Upland landowners • Tideland settlers • Railroads • Eastern Washington citizens

This disagreement turned into the biggest fight of all at the constitutional convention

Finally agreed on establishing a harbor line, but no agreement on status of tidelands

“If any of the lands of this state have not been given away in this article the omission to do so is unintentional on our part� Delegate Griffitts; Spokane

Finally, a compromise was hammered out: “Drank a good deal in evening [and]… called at T.L. Stiles’ rooms to discuss the advisability of passing something ref. to tidelands as he has been one of the vigorous opponents. Allen Weir was there also. We agreed on an article. Stiles drew it. Each agreed to not oppose it. I am to introduce it. Weir joined us on several drinks of whiskey.” Delegate Austin Mires

General outline of the compromise: • declare state ownership of tidelands • prohibit sale of tidelands in the harbor area • establish a harbor line commission Effect was to postpone key decisions about locations of harbor lines

Subsequent legislatures established several key things • Classification of tideland • Establishment of waterways Fights over the location of harbor lines and sale of tidelands led to creation of port districts to buy back the land that was sold

Aquatic Lands terminology • Harbor lines • Harbor areas • Waterways • Tidelands • Pierhead and bulkhead lines

A diagram of terms

From George Peters Jr, Washington Land Title Association

Lake Union; Seattle, WA

Anatomy of a harbor area: Outer harbor line – State shall never lease or sell beyond it. Inner harbor line – State shall only lease beyond this line for 30 years; reserved for navigation and commerce. Harbor area – Area between lines. Lines are established by the Harbor Line Commission. (Article XV State Constitution)

• …[harbor areas] … “shall be forever

reserved for landings, wharves, streets, and other conveniences of navigation and commerce.”

• - Article XV Washington State Constitution

Waterways • Waterways are governed by RCW ch.

79.120. • They are considered “water streets” allowing access from docks to the open water.

Waterways • WAC 332-30-117 describes use conditions: – Permits required for uses other than navigation or short term moorage. – Permit process described.

Waterways + harbor areas + controversial uses = toxic brew • The Port of Seattle leased its Terminal 5

to Foss Maritime under a 2 year lease. One of Foss’s customers is Shell Offshore, Inc., which is carrying out oil exploration in the Chuckchi Sea. • Opposition to Shell’s presence has been vocal, leading to lawsuits, permit challenges, and questions from DNR.

Waterways + harbor areas + controversial uses = toxic brew • DNR has requested an opinion from the

state Attorney General on two questions regarding Terminal 5: • 1. Does art. XV of state Constitution prohibit private parties from mooring beyond the outer harbor line in a waterway. • 2. How long may a private party moor in a waterway beyond the outer harbor line?

The State relied for seventy years on harbor lines and city platting to control harbor development Some federal role:

pierhead lines bulkhead lines

There was never a good linkage between state and local harbor goals There was no permit or planning system for tidelands outside of harbors

• 1960’s: Growing concern from citizens about high-rise, retail and residential development (Edgewater Hotel)

• 1969: Wilbour v. Gallagher “Thou shalt not fill public waters without public permission”

The Shoreline Management Act Passed in 1971.“Sharing of powers� between state and local government Created a permit system State = Department of Ecology

Remember the Public Trust Doctrine? • SMA:

Held to be the state’s articulation of this doctrine

• Also a stronger federal role: Coastal Zone Management Act Clean Water Act

Aquatic Lands Act of (1983) Guides and controls state-owned Aquatic Land

• Preference for water-dependent uses • Continues to recognize port district role in harbor planning (Port Management Agreement)

Port Management Agreements (PMA’s)

• Ports were given authority to manage

state-owned aquatic land “adjacent to and used in conjunction with” uplands owned or controlled by the port • The specifics are defined in a PMA, which is essentially a land management contract between the port and DNR.

PMA’s (continued) • There are two versions of the PMA: the

1984 version and the 1995 version. • 31 ports have a PMA, about half have the first version and the other half have the newer version. • The PMA delegates authority to the port to “stand in the shoes” of the state.

PMA’s (continued) • Address most land management issues, such as: • Leasing • Adding or removing property • Boundaries • Improvements and fills • Rents

• PMA’s (continued) • One of the key parts of the PMA is Exhibit A, which is a map of the state-owned aquatic land covered by the PMA.

• The terms of the two PMA versions differ. The 1984 one lasts as long as the laws allow PMA’s to exist. The 1995 PMA has a term of 30 years, with a renewal process.

PMA’s (continued) • The WPPA PMA Handbook is your best resource for information • Found on the WPPA website

Key struggles remain: • Reconciling state v. local vision • Cleaning up sediment & waterfront • Paying for redevelopment

But look! Here come more crowds, pacing straight for the water, and seemingly bound for a dive. Strange! Nothing will content them but the extremist limit of the land; loitering under the shady lee of yonder warehouses will not suffice. No. They must get just as nigh the water as they possibly can without falling in. And there they stand – miles of them – leagues. Inlanders all, they come from lanes and alleys, streets and avenues – north, east, south, and west. Yet here they all unite. Herman Melville, Moby Dick

WPPA 2015 Env Seminar - Harbor Planning & Port Mgmt, Johnson, Tanaka  
WPPA 2015 Env Seminar - Harbor Planning & Port Mgmt, Johnson, Tanaka