AN ACT Relating to aquaculture; adding a new chapter to Title 75 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. It is the intent of the legislature to promote aquaculture while insuring that the environment of the state's waters is protected and the population and quality of the state's fish and shellfish population is preserved.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise the definitions in this section apply throughout this chapter:

(1) "Aquaculture" means the culture or farming of food fish, shellfish, or other aquatic plants and animals, and for the purposes of this chapter includes commercial clam and geoduck harvesting.

(2) "Dredging" means the removal of earth, sand, gravel, silt, or debris from the bottom of a stream, river, lake, bay, or other water body. Dredging includes any harvesting of natural resources by any mechanical or hydraulic means that involves substrate displacement or disturbance.

(3) "Director" means the director of fisheries.

(4) "Department" means the department of fisheries.

(5) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state or local government.

(6) "Extreme low tide" means the lowest line on the land reached by a receding tide.

(7) "Intertidal" means the region between the extremes of high and low tide.

NEW SECTION. Sec. 3. (1) All persons engaging in aquaculture or aquaculture activities shall submit plans for their activities to the department for approval.

(2) The department may require that persons submit an environmental impact statement with their plans and proposals.

(3) The department may modify, approve, or deny the request for approval of the plans or proposals. The department must render a decision within sixty days of the receipt of the request for approval.

(4) Any decision of the department made under subsection (3) of this section may be appealed to the director or the director's designee within thirty days of the decision. The director or the director's designee must render a decision on the appeal within thirty days of receipt of the appeal.

NEW SECTION. Sec. 4. Floating and submerged aquaculture structures shall not unduly restrict navigational access to waterfront property or interfere with general navigation. These structures shall be located waterward of the minus three fathom contour or two hundred feet beyond extreme low tide, whichever is further offshore, and floating structures shall not extend beyond one thousand feet therefrom.

NEW SECTION. Sec. 5. Intertidal aquaculture structures, such as pilings and intertidal formations, shall not unduly restrict pedestrian circulation along beaches and navigation between the structures and any floating or submerged aquaculture structures. These structures shall be located between the mean tide level and extreme low tide.

NEW SECTION. Sec. 6. Aquaculture wastes shall be disposed of in a manner that will prevent degradation of associated upland, wetland, shoreline, or water environments.

NEW SECTION. Sec. 7. All aquaculture systems shall be marked in accordance with United States coast guard requirements.

NEW SECTION. Sec. 8. Aquaculture proposals that cause substrate displacement through dredging, trenching, or digging shall not be allowed in areas with more than fifteen percent fine sediment (sixty-three microns or smaller) until it can be shown that the method or equipment ensures immediate and sustained trench or hole refill, that there will be minimal significant adverse impacts on natural systems, and that water quality standards are met.

NEW SECTION. Sec. 9. (1) Aquaculture proposals that hydraulically or mechanically displace or disturb substrate or bottom material shall not be allowed in areas unless it can be demonstrated that displaced or disturbed materials including, but not limited to, mulk, silts, fines, nutrients, and chemical, organic, or other contaminants can be returned to the location from which they came in a manner such that they will not be resuspended or moved from that location by wind, current, wave, or tidal action.

(2) Compliance with this requirement shall be met through presentation of documented evidence that verifies to the department's satisfaction that there has been compliance with protective controls. Any on-site, noncommercial testing to support the presented documentation shall be limited in duration and distance. All required base line studies shall be completed before any testing is allowed.

NEW SECTION. Sec. 10. Aquaculture proposals or development shall not be allowed if they cause or would cause:

(1) In intertidal areas, a significant decline in numbers of benthic organisms, other than those being harvested, or result in the long-term destruction of the habitat of colonies of benthic organisms;

(2) Substrate displacement through dredging, trenching, or digging in existing kelp beds or in areas with more than two turions of eel grass per 1/4M!bu2!eu in winter or three turions per 1/4M!bu2!eu in summer; or

(3) Significant erosion, accretion, or avulsion along adjacent shorelines.

NEW SECTION. Sec. 11. Aquaculture projects shall be required to comply with the state noise control laws, chapter 70.107 RCW, air pollution control regulations, water quality standards, and all other pertinent codes and ordinances.

NEW SECTION. Sec. 12. When necessary, aquaculture projects may be allowed on a provisional basis and monitoring of specific environmental conditions may be required at the applicant's expense before and during operation as a condition of approval, to provide proof that violations of the permit or potentially significant negative environmental impacts do not occur.

NEW SECTION. Sec. 13. Where aquaculture projects will require improvements to public facilities, such as boat launches, roads, or public utilities, the applicant shall be required to contribute proportionally to the cost of the improvement.

NEW SECTION. Sec. 14. Aquaculture activities shall be restricted to particular hours and days of operation when necessary to protect nearby residents from adverse impacts such as noise, light, and glare.

NEW SECTION. Sec. 15. Floating aquaculture structures and equipment shall be designed, operated, and maintained in a clean, orderly, and sound manner to control odor and avoid a messy, haphazard, or dilapidated appearance.

NEW SECTION. Sec. 16. Aquaculture permittees shall be required to carry liability insurance in an amount commensurate with the risk involved of injury or damage to any person or property as a result of the project.

NEW SECTION. Sec. 17. No shoreline permit for aquaculture or rights under such permit may be transferred by sale or lease or other conveyance of any interest without prior department approval.

NEW SECTION. Sec. 18. Predator control shall not involve the killing of birds or mammals.

NEW SECTION. Sec. 19. The department is authorized to adopt such rules as are necessary and appropriate to carry out the provisions of this chapter.

NEW SECTION. Sec. 20. The attorney general shall bring such injunctive, declaratory, or other actions as are necessary to enforce this chapter.

NEW SECTION. Sec. 21. In addition to incurring a civil liability under this chapter, any person found to have wilfully engaged in violation of this chapter or any of the rules adopted under it shall be guilty of a gross misdemeanor, and shall be punished by a fine of not less than twenty-five nor more than one thousand dollars or by imprisonment in the court jail for not more than ninety days, or by both such fine and imprisonment: PROVIDED, That the fine for the third and all subsequent violations in any five-year period shall be not less than five hundred nor more than ten thousand dollars.

NEW SECTION. Sec. 22. Any person subject to this chapter who violates any provision of it or of a permit issued under it shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition before the violation. The attorney general shall bring suit for damages under this section on behalf of the state. Private persons shall have the right to bring suit for damages under this section on their own behalf and on the behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by a violation, the court shall make an order to assure that restoration will be accomplished within a reasonable time at the expense of the violator. In addition to such relief, including money damages, the court in its discretion may award attorneys' fees and costs of the suit to the prevailing party.

NEW SECTION. Sec. 23. Sections 1 through 22 of this act shall constitute a new chapter in Title 75 RCW.