By Frank Chmelik and Tim Schermetzler of CSD Attorneys at Law P.S.

            Many ports from around the state attended the WPPA Small Ports conference in Chelan last month where one of the topics was a panel discussion on planning for ports.  As the panel discussion illuminated, there are a wide array of planning documents adopted by ports around the state, reflecting the diversity of WPPA’s membership.  This month’s column provides an overview of the statutorily required port planning document – the Comprehensive Schemes of Harbor Improvements (the “Comp Scheme”).  Comp Schemes are intended to be guidance documents that inform and guide the actions of ports when expending money on improvements.  Like other planning documents, Comp Schemes are only a useful tool if used by the port.  If your port’s plan is saved in an archived folder as a Word 97 document or is in a binder gathering dust on a bookshelf, it may be time to plan a review and update in 2025.  As your port considers updating your Comp Scheme, consider the following:  

1.            What level of detail does my Comp Scheme need?

The answer to this question is often unique to the port itself.  The Comp Scheme is a Commission document and can be as general or as specific as the port commission deems appropriate.  There is no required length or format for a Comp Scheme, and with a few limited exceptions,[1] there is no required content of the scheme.  Some ports maintain detailed Comp Schemes and routinely update them each time the port embarks on a new project or enters a lease with a new tenant.  Other ports take a more generalized approach, creating a Comp Scheme that provides a high-level overview of plans for improvements, an inventory of port property, and the proposed use or types of uses for port property.  Often these high-level plans identify, or in some circumstances, incorporate by reference other planning documents, such as a strategic plan, to provide references to more specific details.

            The sufficiency of Comp Schemes has been challenged in courts over the years, and the courts have provided some guidance on what level of detail is required to pass legal muster.  The Washington Supreme Court noted that a Comp Scheme can be a single document or a series of documents (such as capital budgets, airport layout plans or marina master plans) so long as the compendium of documents provide a fairly detailed picture of the port district’s plans and informs the taxpayers of the manner and purpose for which their money will be spent.  While courts generally give wide latitude to ports when creating their Comp Schemes, the Washington Supreme Court has rejected a port’s attempt to merely adopt a resolution which did little more than declare the port commission’s intent to exercise general powers conferred on ports, without any map, plan, specification, or description of work intended to be constructed. 

2.            Are ports required to plan under the Growth Management Act (“GMA”)?

Ports are not currently required to plan under the GMA – Chapter 36.70A RCW.[2]  For many years, ports led the way in governmental planning as one of the first local governments in Washington that had a statutory mandate to create and adopt a planning document.  Comp Schemes were included in the 1911 statutes that created port districts and are now provided for in Chapter 53.20 RCW – Harbor Improvements.  Port’s statutory planning requirements came decades before the state legislature passed the GMA in the 1990s.  It is important to note, however, that port’s planning requirements for planning improvements under Chapter 53.20 RCW differ from the regulatory planning under the GMA.

Many ports collaborate with the cities and counties to fulfill those local governments’ regulatory planning requirements under the GMA.  Ports may provide useful details to cities and counties concerning mandatory elements of comprehensive plans (“Comp Plans”) including, for example, the land use, utilities, transportation, and economic development elements.  Some city and county jurisdictions may elect to adopt, by reference, their port district’s Comp Scheme within the Comp Plans; however, care should be taken when combining these planning tools because, unlike the Comp Scheme’s specific focus on improvements by a port district, Comp Plans focus on regulation of land use decisions and permitting.  Additionally, adopting a port’s Comp Scheme in a city’s or county’s Comp Plan may have the unintended consequences of rendering a Comp Plan outdated or inaccurate because ports often update their Comp Schemes on a more frequent schedule.  Comp Plans are reviewed and amended on specific, statutorily mandated time frames, which often do not match up with a port’s need to more frequently update their Comp Schemes when taking advantage of economic development opportunities and investing in port facilities. 

3.            When must a port update its Comp Scheme?

            There is no statutory mandated schedule for updating the Comp Scheme, but it is recommended that port commissions review their Comp Scheme at least annually to ensure that it reflects the commission’s direction and desired level of detail.  Ports must update their Comp Scheme before expending money on improvements that are not currently provided for in the Comp Scheme.  As a result, many ports align their review of the Comp Scheme with their annual adoption of a capital budget per the Chapter 53.35 RCW mandated port budget process.  These capital budgets typically detail specific projects that will be built during the next calendar year. 

A best practice is to formally amend the Comp Scheme to reference the capital budget each year.  The notice and public hearing provisions for port budget adoption in RCW 53.35.020 and RCW 53.35.030 are nearly identical with the notice and public hearing provisions for amending the Comp Scheme in RCW 53.20.010.  In fact, a single required public notice could be crafted to satisfy both the budget adoption and the Comp Scheme amendment.  By routinely amending the Comp Scheme to include the projects in the capital budget, a port (i) ensures that the commission reviews the Comp Scheme annually, (ii) ensures the Comp Scheme is consistent with all budgeted capital projects, and (iii) minimizes a legal challenge to a capital project based upon inconsistency with the port’s Comp Scheme.

As a final note, remember to conduct a “non-project” action State Environmental Policy Act (SEPA) review before adopting or amending a Comp Scheme.  A SEPA “non-project” action is defined broadly to include any “actions which are different or broader than a single site-specific project, such as plans, policies, and programs.”[3]  A port can adopt its owns SEPA policies and procedures and act as its own lead agency to facilitate this review.

As always, please contact your port counsel with questions regarding this topic.  And, if you have a question for Knowing the Waters, please e-mail us at fchmelik@csdlaw.com or tschermetzler@csdlaw.com.

[1] Ports seeking grants or other financial support from state agencies for freight facilities should adopt a freight development plan within their Comp Scheme per RCW 53.20.055.

[2] Note that cities with marine container ports that have an annual operating revenue in excess of sixty million dollars must include a container port element in their comprehensive plan per RCW 36.70A.085.  While not a mandate to ports, ports that meet this criteria likely would work closely with the city in developing that element of the comprehensive plan.

[3] WAC 197-11-774.