BILL REQ. #:  H-1414.1 

Read first time 02/04/09.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to marine transportation facilities for sand and gravel; amending RCW 78.44.031; adding new sections to chapter 78.44 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that the economic vitality of the state of Washington is dependent, in part, on the continued availability, quantity, and quality of sand and gravel for public and private construction and restoration projects, including federal, state, and local highways, roads, buildings, and a variety of public infrastructure projects.
     (2) The legislature further finds that marine transportation facilities capable of delivering high quality, high volume supplies of sand and gravel are critical to the state's ability to undertake, in the very near term, infrastructure projects pursuant to federal and state economic stimulus programs, including environmental, transportation, and public facility projects.
     (3) The legislature further finds that marine transportation of high quality sand and gravel is more cost-effective for larger, regional, or distant projects requiring greater quantities of material than truck transportation, which is primarily feasible for local deliveries only. Therefore by lowering transportation costs, the primary factor in supplying sand and gravel for public projects, marine transportation represents a significant savings for taxpayers on public projects.
     (4) The legislature further finds that marine transportation of sand and gravel significantly reduces the volume of heavy truck traffic on congested highways and roads, resulting in improved safety for all drivers, less property damage, and reduced roadway wear and tear that can extend the life of highways and roads and thereby lower taxpayer costs.
     (5) The legislature further finds that marine transportation of sand and gravel is more environmentally friendly than truck transportation, using less fossil fuel per vehicle mile per material ton transported, and improving air quality and lessening the impact of transportation systems on global warming while reducing the contamination of surface water runoff.
     (6) The legislature further finds that marine transportation of sand and gravel provides a more viable, cost-effective, and environmentally friendly method of delivery for broad-scale beach restoration and shoreline enhancement projects.
     (7) The legislature further finds that marine transportation of sand and gravel on Puget Sound, Hood Canal, and Washington waters is an issue of statewide importance and, therefore, it is not appropriate for one local jurisdiction to conduct or control permit processes for marine transportation facilities that can impact citizens throughout the region and state, particularly when sand and gravel produced and transported by facilities is delivered to and used in multiple jurisdictions.
     (8) The legislature further finds that economic development, job creation, environmental protection, and environmental benefits are not contradictory, and therefore will utilize the balancing tests set forth in the growth management act, the shoreline management act, and all other applicable federal and state statutes, to support and encourage economic development and environmental projects that are deemed beneficial to the people of Washington.

NEW SECTION.  Sec. 2   A new section is added to chapter 78.44 RCW to read as follows:
     (1) The department has the exclusive authority to regulate the design, construction, and operation of a marine transportation facility for sand and gravel associated with mining projects located primarily on lands designated as forest or mineral resource lands under RCW 36.70A.060 in counties located west of the crest of the Cascade mountains with a population of fewer than thirty-five thousand persons.
     (2) No state agency, county, city, or town may require review or approval of a separate plan or permit for facilities under the exclusive authority of the department. However, nothing in this section or sections 3 and 4 of this act alters or preempts any provisions of the state water allocation and use laws, chapters 90.03 and 90.44 RCW, the state water pollution control laws, chapter 90.48 RCW, the state fish and wildlife laws, Title 77 RCW, the state noise laws or air quality laws, Title 70 RCW, the state environmental policy act, chapter 43.21C RCW, or state drinking water laws, chapters 43.20 and 70.119A RCW.

NEW SECTION.  Sec. 3   A new section is added to chapter 78.44 RCW to read as follows:
     (1) After the effective date of this section, no marine transportation facility capable of being used for sand and gravel may be constructed without having first obtained a marine transportation facility permit from the department. A permit under this section is not required for a marine transportation facility for sand and gravel that received a permit and started construction prior to the effective date of this section. The permit holder shall comply with the provisions of the marine transportation facility permit unless waived and explained in writing by the department.
     (2) Prior to receiving a marine transportation facility permit, an applicant must submit an application on forms provided by the department that contains the following information:
     (a) The name and address of the legal landowner, or purchaser of the land under a real estate contract on which the facility is proposed to be located;
     (b) The name of the applicant and, if the applicants are corporations or other business entities, the names and addresses of their principal officers and resident agent for service of process;
     (c) A description of the source of the sand and gravel to be used by the proposed marine transportation facility;
     (d) A description of the proposed marine transportation facility, including all conveyance systems, docks, piers, and loading facilities;
     (e) Estimated days and hours of operation for the marine transportation facility;
     (f) Any applicable documents required under the state environmental policy act, chapter 43.21C RCW; and
     (g) Other data as required by the department.
     (3) An applicant for a marine transportation facility permit shall pay a nonrefundable application fee to the department of two thousand five hundred dollars.

NEW SECTION.  Sec. 4   A new section is added to chapter 78.44 RCW to read as follows:
     (1) Within thirty days after receipt of a complete application for a marine transportation facility permit required under section 3 of this act, the department must issue notice of the application to and request written comments from:
     (a) The department of ecology;
     (b) The county or city in which the proposed facility will be located;
     (c) Any county in the state that reasonably can be expected to receive sand and gravel shipments from the proposed facility;
     (d) Any county in the state through which shipments from the proposed facility can reasonably be expected to pass;
     (e) All property owners within five hundred feet of the proposed facility;
     (f) Any federal agency with jurisdiction; and
     (g) Any Indian tribe or other organization that has requested that the department notify them of applications for a marine transportation facility permit.
     (2) The notice required by subsection (1) of this section must require that any comments on the proposed application be submitted to the department within forty-five days after the notice is issued.
     (3) The department is the lead agency for purposes of compliance with chapter 43.21C RCW, pursuant to the state environmental policy act rules adopted by the department.
     (4) After completion of the state environmental policy act process under chapter 43.21C RCW and review of the application by the department, the department must issue a written decision on the application, which must include conditions and restrictions on the construction and operation of the marine transportation facility that the department determines are necessary to ensure that the facility is operated in a manner consistent with the public health, safety, and welfare, and that any significant adverse environmental impacts have been mitigated in accordance with the provisions of chapter 43.21C RCW. A copy of the decision must be mailed to the applicant and to any person or party identified in subsection (1) of this section who has requested a copy of the decision.
     (5) Any party aggrieved by the department's decision may file an appeal to the pollution control hearings board in accordance with the provisions of chapter 34.05 RCW.

Sec. 5   RCW 78.44.031 and 2000 c 11 s 22 are each amended to read as follows:
     ((Unless the context clearly indicates otherwise,)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Approved subsequent use" means the post surface-mining land use contained in an approved reclamation plan and approved by the local land use authority.
     (2) "Completion of surface mining" means the cessation of mining and directly related activities in any segment of a surface mine that occurs when essentially all minerals that can be taken under the terms of the reclamation permit have been depleted except minerals required to accomplish reclamation according to the approved reclamation plan.
     (3) "Department" means the department of natural resources.
     (4) "Determination" means any action by the department including permit issuance, reporting, reclamation plan approval or modification, permit transfers, orders, fines, or refusal to issue permits.
     (5) "Disturbed area" means any place where activities clearly in preparation for, or during, surface mining have physically disrupted, covered, compacted, moved, or otherwise altered the characteristics of soil, bedrock, vegetation, or topography that existed prior to such activity. Disturbed areas may include but are not limited to: Working faces, water bodies created by mine-related excavation, pit floors, the land beneath processing plant and stock pile sites, spoil pile sites, and equipment staging areas. Disturbed areas shall also include aboveground waste rock sites and tailing facilities, and other surface manifestations of underground mines.
     Disturbed areas do not include:
     (a) Surface mine access roads unless these have characteristics of topography, drainage, slope stability, or ownership that, in the opinion of the department, make reclamation necessary;
     (b) Lands that have been reclaimed to all standards outlined in this chapter, rules of the department, any applicable SEPA document, and the approved reclamation plan; and
     (c) Subsurface aspects of underground mines, such as portals, tunnels, shafts, pillars, and stopes.
     (6) "Marine transportation facility" includes: (a) Docks, piers, and related facilities for the marine transportation of sand and gravel; and (b) land-based conveyance systems for delivery of sand and gravel from surface mines regulated under this chapter to docks, piers, and related facilities.
     (7) "Miner" means any person or persons, any partnership, limited partnership, or corporation, or any association of persons, including every public or governmental agency engaged in surface mining.
     (((7))) (8) "Minerals" means clay, coal, gravel, industrial minerals, metallic substances, peat, sand, stone, topsoil, and any other similar solid material or substance to be excavated from natural deposits on or in the earth for commercial, industrial, or construction use.
     (((8))) (9) "Operations" means all mine-related activities, exclusive of reclamation, that include, but are not limited to activities that affect noise generation, air quality, surface and ground water quality, quantity, and flow, glare, pollution, traffic safety, ground vibrations, and/or significant or substantial impacts commonly regulated under provisions of land use or other permits of local government and local ordinances, or other state laws.
     Operations specifically include:
     (a) The mining or extraction of rock, stone, gravel, sand, earth, and other minerals;
     (b) Blasting, equipment maintenance, sorting, crushing, and loading;
     (c) On-site mineral processing including asphalt or concrete batching, concrete recycling, and other aggregate recycling;
     (d) Transporting minerals to and from the mine, on site road maintenance, road maintenance for roads used extensively for surface mining activities, traffic safety, and traffic control.
     (((9))) (10) "Overburden" means the earth, rock, soil, and topsoil that lie above mineral deposits.
     (((10))) (11) "Permit holder" means any person or persons, any partnership, limited partnership, or corporation, or any association of persons, either natural or artificial, including every public or governmental agency engaged in surface mining and/or the operation of surface mines, whether individually, jointly, or through subsidiaries, agents, employees, operators, or contractors who holds a state reclamation permit.
     (((11))) (12) "Reclamation" means rehabilitation for the appropriate future use of disturbed areas resulting from surface mining including areas under associated mineral processing equipment, areas under stockpiled materials, and aboveground waste rock and tailing facilities, and all other surface disturbances associated with underground mines. Although both the need for and the practicability of reclamation will control the type and degree of reclamation in any specific surface mine, the basic objective shall be to reestablish on a perpetual basis the vegetative cover, soil stability, and water conditions appropriate to the approved subsequent use of the surface mine and to prevent or mitigate future environmental degradation.
     (((12))) (13) "Reclamation setbacks" include those lands along the margins of surface mines wherein minerals and overburden shall be preserved in sufficient volumes to accomplish reclamation according to the approved plan and the minimum reclamation standards. Maintenance of reclamation setbacks may not preclude other mine-related activities within the reclamation setback.
     (((13))) (14) "Recycling" means the reuse of minerals or rock products.
     (((14))) (15) "Screening" consists of vegetation, berms or other topography, fencing, and/or other screens that may be required to mitigate impacts of surface mining on adjacent properties and/or the environment.
     (((15))) (16) "Segment" means any portion of the surface mine that, in the opinion of the department:
     (a) Has characteristics of topography, drainage, slope stability, ownership, mining development, or mineral distribution, that make reclamation necessary;
     (b) Is not in use as part of surface mining and/or related activities; and
     (c) Is larger than seven acres and has more than five hundred linear feet of working face except as provided in a segmental reclamation agreement approved by the department.
     (((16))) (17) "SEPA" means the state environmental policy act, chapter 43.21C RCW and rules adopted thereunder.
     (((17))) (18)(a) "Surface mine" means any area or areas in close proximity to each other, as determined by the department, where extraction of minerals results in:
     (i) More than three acres of disturbed area;
     (ii) Surface mined slopes greater than thirty feet high and steeper than 1.0 foot horizontal to 1.0 foot vertical; or
     (iii) More than one acre of disturbed area within an eight acre area, when the disturbed area results from mineral prospecting or exploration activities.
     (b) Surface mines include areas where mineral extraction from the surface or subsurface occurs by the auger method or by reworking mine refuse or tailings, when the disturbed area exceeds the size or height thresholds listed in (a) of this subsection.
     (c) Surface mining occurs when operations have created or are intended to create a surface mine as defined by this subsection.
     (d) Surface mining shall exclude excavations or grading used:
     (i) Primarily for on-site construction, on-site road maintenance, or on-site landfill construction;
     (ii) For the purpose of public safety or restoring the land following a natural disaster;
     (iii) For the purpose of removing stockpiles;
     (iv) For forest or farm road construction or maintenance on site or on contiguous lands;
     (v) Primarily for public works projects if the mines are owned or primarily operated by counties with 1993 populations of less than twenty thousand persons, and if each mine has less than seven acres of disturbed area; and
     (vi) For sand authorized by RCW 79A.05.630.
     (((18))) (19) "Topsoil" means the naturally occurring upper part of a soil profile, including the soil horizon that is rich in humus and capable of supporting vegetation together with other sediments within four vertical feet of the ground surface.