S-3507.2 _______________________________________________
SENATE BILL 6318
_______________________________________________
State of Washington 56th Legislature 2000 Regular Session
By Senators Rasmussen, Morton, Stevens and Swecker
Read first time 01/13/2000. Referred to Committee on Agriculture & Rural Economic Development.
AN ACT Relating to dairy nutrients; amending RCW 90.64.010, 90.64.023, 90.64.026, 90.64.050, 90.64.080, 90.64.130, 90.64.140, and 90.64.800; creating new sections; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The legislature finds that substantial progress has been made in implementing the dairy nutrient management act since its enactment in 1998. Though the involved agencies and interest groups are cooperatively working to meet the deadlines established in that legislation, insufficiency of funding or unexpected obstacles, if not quickly remedied, will cause a delay in the implementation of the legislation and noncompliance with established deadlines.
The purpose of this act is to combine the advisory and oversight committee with the dairy nutrient task force that includes legislative participation to provide continuity to monitoring and problem-solving efforts.
NEW SECTION. Sec. 2. (1) A dairy nutrient management task force is established. The task force shall be comprised of up to thirteen members, appointed as follows:
(a) Two members of the house of representatives, one from each major caucus, appointed by the co-speakers of the house of representatives;
(b) Two members of the senate, one from each major caucus, appointed by the president of the senate;
(c) A representative of the department of ecology, appointed by the director of ecology;
(d) A representative of the state conservation commission, appointed by its executive secretary;
(e) A representative of local conservation districts, appointed by the president of a state-wide association of conservation districts;
(f) Three active dairy farmers or representatives of dairy farmers, appointed by a state-wide organization representing dairy farmers in the state, who shall represent the different regions and different sizes of dairy operations;
(g) A representative of an environmental interest organization with familiarity and expertise in water quality issues, appointed by agreement of the co-speakers of the house of representatives and the president of the senate;
(h) A representative of shellfish growers, appointed by the president of a state-wide association of shellfish growers;
(i) A representative of local health districts appointed by the president of a state-wide association of local health districts; and
(j) In addition to other members appointed under this subsection (1):
(i) The executive director of the state conservation commission shall request that a representative of the federal natural resource conservation service be appointed by the state conservationist; and
(ii) The director of the department of ecology shall request that a representative of the federal environmental protection agency be appointed by the regional director of the environmental protection agency.
(2) The task force shall meet three times per year, or more if necessary, to monitor the progress and provide oversight of the dairy nutrient management program administered by the department of ecology, the conservation commission, and local conservation districts. The task force shall include but not be limited to examination of the following topics:
(a) Determining whether the necessary progress is being attained so that deadlines established in chapter 262, Laws of 1998, for the development, approval, implementation, and final certification of dairy nutrient management plans will be achieved;
(b) Monitoring the development of and review recommendations for adequate funding for the various components of the program;
(c) Successful incorporation of engineering services into the existing system of technical assistance for the design and construction of dairy nutrient management plans; and
(d) Resolution of the conflict between the state public records laws and federal privacy laws in regards to processing of requests for dairy nutrient management plans when requests are submitted to staff that operate under different directives but share common office space.
(3) By December 20th of each year, the task force shall:
(a) Provide recommendations to the department of ecology, to the conservation commission, and to local conservation districts for improvements in the implementation of the dairy nutrient management program; and
(b) Provide recommendations to the legislature on statutory changes to clarify and improve the operations of various facets of the program.
(4) The task force shall convene as soon as possible upon appointment of its members. The task force shall elect a chair or co-chairs and adopt rules for conducting the business of the task force. Staff support for the task force shall be provided by the department of ecology.
(5) This section expires June 30, 2004.
Sec. 3. RCW 90.64.010 and 1998 c 262 s 2 are each amended to read as follows:
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1)
(("Advisory and oversight committee" means a balanced committee of
agency, dairy farm, and interest group representatives convened to provide
oversight and direction to the dairy nutrient management program.
(2)))
"Bypass" means the intentional diversion of waste streams from any
portion of a treatment facility.
(((3)))
(2) "Catastrophic" means a tornado, hurricane, earthquake,
flood, or other extreme condition that causes an overflow from a required waste
retention structure.
(((4)))
(3) "Certification" means:
(a) The acknowledgment by a local conservation district that a dairy producer has constructed or otherwise put in place the elements necessary to implement his or her dairy nutrient management plan; and
(b) The acknowledgment by a dairy producer that he or she is managing dairy nutrients as specified in his or her approved dairy nutrient management plan.
(((5)))
(4) "Chronic" means a series of wet weather events that
precludes the proper operation of a dairy nutrient management system that is
designed for the current herd size.
(((6)))
(5) "Conservation commission" or "commission" means
the conservation commission under chapter 89.08 RCW.
(((7)))
(6) "Conservation districts" or "district" means a
subdivision of state government organized under chapter 89.08 RCW.
(((8)))
(7) "Concentrated dairy animal feeding operation" means a
dairy animal feeding operation subject to regulation under this chapter which
the director designates under RCW 90.64.020 or meets the following criteria:
(a) Has more than seven hundred mature dairy cows, whether milked or dry cows, that are confined; or
(b) Has more than two hundred head of mature dairy cattle, whether milked or dry cows, that are confined and either:
(i) From which pollutants are discharged into navigable waters through a manmade ditch, flushing system, or other similar manmade device; or
(ii) From which pollutants are discharged directly into surface or ground waters of the state that originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.
(((9)))
(8) "Dairy animal feeding operation" means a lot or facility
where the following conditions are met:
(a) Dairy animals that have been, are, or will be stabled or confined and fed for a total of forty-five days or more in any twelve-month period; and
(b) Crops, vegetation forage growth, or postharvest residues are not sustained in the normal growing season over any portion of the lot or facility. Two or more dairy animal feeding operations under common ownership are considered, for the purposes of this chapter, to be a single dairy animal feeding operation if they adjoin each other or if they use a common area for land application of wastes.
(((10)))
(9) "Dairy farm" means any farm that is licensed to produce
milk under chapter 15.36 RCW.
(((11)))
(10) "Dairy nutrient" means any organic waste produced by
dairy cows or a dairy farm operation.
(((12)))
(11) "Dairy nutrient management plan" means a plan meeting the
requirements established under RCW 90.64.026.
(((13)))
(12) "Dairy nutrient management technical assistance team"
means one or more professional engineers and local conservation district
employees convened to serve one of four distinct geographic areas in the state.
(((14)))
(13) "Dairy producer" means a person who owns or operates a
dairy farm.
(((15)))
(14) "Department" means the department of ecology under
chapter 43.21A RCW.
(((16)))
(15) "Director" means the director of the department of
ecology, or his or her designee.
(((17)))
(16) "Upset" means an exceptional incident in which there is
an unintentional and temporary noncompliance with technology-based permit
effluent limitations because of factors beyond the reasonable control of the
dairy. An upset does not include noncompliance to the extent caused by
operational error, improperly designed treatment facilities, inadequate
treatment facilities, lack of preventive maintenance, or careless or improper
operation.
(((18)))
(17) "Violation" means the following acts or omissions:
(a) A discharge of pollutants into the waters of the state, except those discharges that are due to a chronic or catastrophic event, or to an upset as provided in 40 C.F.R. Sec. 122.41, or to a bypass as provided in 40 C.F.R. Sec. 122.41, and that occur when:
(i) A dairy producer has a current national pollutant discharge elimination system permit with a wastewater system designed, operated, and maintained for the current herd size and that contains all process-generated wastewater plus average annual precipitation minus evaporation plus contaminated storm water runoff from a twenty-five year, twenty-four hour rainfall event for that specific location, and the dairy producer has complied with all permit conditions, including dairy nutrient management plan conditions for appropriate land application practices; or
(ii) A dairy producer does not have a national pollutant discharge elimination system permit, but has complied with all of the elements of a dairy nutrient management plan that: Prevents the discharge of pollutants to waters of the state, is commensurate with the dairy producer's current herd size, and is approved and certified under RCW 90.64.026;
(b) Failure to register as required under RCW 90.64.017; or
(c) The lack of an approved dairy nutrient management plan by July 1, 2002; or
(d) The lack of a certified dairy nutrient management plan for a dairy farm after December 31, 2003.
Sec. 4. RCW 90.64.023 and 1998 c 262 s 5 are each amended to read as follows:
(1) By October 1, 1998, the department shall initiate an inspection program of all dairy farms in the state. The purpose of the inspections is to:
(a) Survey for evidence of violations;
(b) Identify corrective actions for actual or imminent discharges that violate or could violate the state's water quality standards;
(c) Monitor the development and implementation of dairy nutrient management plans; and
(d) Identify dairy producers who would benefit from technical assistance programs.
(2) Local conservation district employees may, at their discretion, accompany department inspectors on any scheduled inspection of dairy farms except random, unannounced inspections.
(3)
Follow-up inspections shall be conducted by the department to ensure that
corrective and other actions as identified in the course of initial inspections
are being carried out. The department shall also conduct such additional
inspections as are necessary to ensure compliance with state and federal water
quality requirements, provided that all licensed dairy farms shall be inspected
once within two years of the start of this program. The department((, in
consultation with the advisory and oversight committee established in section 8
of this act,)) shall develop performance-based criteria to determine the
frequency of inspections.
(4) Dairy farms shall be prioritized for inspection based on the development of criteria that include, but are not limited to, the following factors:
(a) Existence or implementation of a dairy nutrient management plan;
(b) Proximity to impaired waters of the state; and
(c)
Proximity to all other waters of the state. ((The criteria developed to
implement this subsection (4) shall be reviewed by the advisory and oversight
committee.))
Sec. 5. RCW 90.64.026 and 1998 c 262 s 6 are each amended to read as follows:
(1) Except for those producers who already have a certified dairy nutrient management plan as required under the terms and conditions of an individual or general national pollutant discharge elimination system permit, all dairy producers licensed under chapter 15.36 RCW, regardless of size, shall prepare a dairy nutrient management plan. If at any time a dairy nutrient management plan fails to prevent the discharge of pollutants to waters of the state, it shall be required to be updated.
(2)
By November 1, 1998, the conservation commission((, in conjunction with the
advisory and oversight committee established under section 8 of this act))
shall develop a document clearly describing the elements that a dairy nutrient
management plan must contain to gain local conservation district approval.
(3)
In developing the elements that an approved dairy nutrient management plan must
contain, the commission may authorize the use of other methods and technologies
than those developed by the natural resources conservation service ((when
such alternatives have been evaluated by the advisory and oversight committee)).
Alternative methods and technologies shall meet the standards and
specifications of:
(a) The natural resources conservation service as modified by the geographically based standards developed under RCW 90.64.140; or
(b) A professional engineer with expertise in the area of dairy nutrient management.
(4)
((In evaluating alternative technologies and methods, the principal
objectives of the committee's evaluation shall be determining:
(a)
Whether there is a substantial likelihood that, once implemented, the
alternative technologies and methods would not violate water quality
requirements;
(b)
Whether more cost-effective methods can be successfully implemented in some or
all categories of dairy operations; and
(c)
Whether the technologies and methods approved or provided by the natural
resources conservation service for use by confined animal feeding operations
are necessarily required for other categories of dairy operations.
In
addition, the committee shall encourage the conservation commission and the
conservation districts to apply in dairy nutrient management plans technologies
and methods that are appropriate to the needs of the specific type of operation
and the specific farm site and to avoid imposing requirements that are not
necessary for the specific dairy producer to achieve compliance with water
quality requirements.
(5))) Such
plans shall be submitted for approval to the local conservation district where
the dairy farm is located, and shall be approved by conservation districts no
later than by July 1, 2002. The conservation commission, in conjunction with
conservation districts, shall develop a state-wide schedule of plan development
and approval to ensure adequate resources are available to have all plans
approved by July 1, 2002.
(((6)))
(5) If a dairy producer leases land for dairy production from an owner
who has prohibited the development of capital improvements, such as storage
lagoons, on the leased property, the dairy producer shall indicate in his or
her dairy nutrient management plan that such improvements are prohibited by the
landowner and shall describe other methods, such as land application, that will
be employed by the dairy producer to manage dairy nutrients.
(((7)))
(6) Notwithstanding the timelines in this section, any dairy farm
licensed after September 1, 1998, shall have six months from the date of licensing
to develop a dairy nutrient management plan and another eighteen months to
fully implement that plan.
(((8)))
(7) If a plan contains the elements identified in subsection (2) of this
section, a conservation district shall approve the plan no later than ninety
days after receiving the plan. If the plan does not contain the elements
identified in subsection (2) of this section, the local conservation district
shall notify the dairy producer in writing of modifications needed in the plan
no later than ninety days after receiving the plan. The dairy producer shall
provide a revised plan that includes the needed modifications within ninety
days of the date of the local conservation district notification. If the dairy
producer does not agree with, or otherwise takes exception to, the
modifications requested by the local conservation district, the dairy producer
may initiate the appeals process described in RCW 90.64.028 within thirty days
of receiving the letter of notification.
(((9)))
(8) An approved plan shall be certified by a conservation district and a
dairy producer when the elements necessary to implement the plan have been
constructed or otherwise put in place, and are being used as designed and
intended. A certification form shall be developed by the conservation
commission for use state-wide and shall provide for a signature by both a
conservation district representative and a dairy producer. Certification forms
shall be signed by December 31, 2003, and a copy provided to the department for
recording in the data base established in RCW 90.64.130.
(((10)))
(9) The ability of dairy producers to comply with the planning
requirements of this chapter depends, in many cases, on the availability of
federal and state funding to support technical assistance provided by local
conservation districts. Dairy producers shall not be held responsible for
noncompliance with the planning requirements of this chapter if conservation
districts are unable to perform their duties under this chapter because of insufficient
funding.
Sec. 6. RCW 90.64.050 and 1998 c 262 s 12 are each amended to read as follows:
(1) The department has the following duties:
(a) Identify existing or potential water quality problems resulting from dairy farms through implementation of the inspection program in RCW 90.64.023;
(b) Inspect a dairy farm upon the request of a dairy producer;
(c) Receive, process, and verify complaints concerning discharge of pollutants from all dairy farms;
(d) Determine if a dairy-related water quality problem requires immediate corrective action under the Washington state water pollution control laws, chapter 90.48 RCW, or the Washington state water quality standards adopted under chapter 90.48 RCW. The department shall maintain the lead enforcement responsibility;
(e) Administer and enforce national pollutant discharge elimination system permits for operators of concentrated dairy animal feeding operations, where required by federal regulations and state laws or upon request of a dairy producer;
(f)
((Participate on the advisory and oversight committee;
(g)))
Encourage communication and cooperation between local department personnel and
the appropriate conservation district personnel;
(((h)))
(g) Require the use of dairy nutrient management plans as required under
this chapter for entities required to plan under this chapter; and
(((i)))
(h) Provide to the commission ((and the advisory and oversight
committee)) an annual report of dairy farm inspection and enforcement
activities.
(2) The department may not delegate its responsibilities in enforcement.
Sec. 7. RCW 90.64.080 and 1998 c 262 s 14 are each amended to read as follows:
(1) The conservation commission has the following duties:
(a) Provide assistance as may be appropriate to the conservation districts in the discharge of their responsibilities as management agencies in dairy nutrient management program implementation;
(b) Provide coordination for conservation district programs at the state level through special arrangements with appropriate federal and state agencies, including oversight of the review, approval, and certification of dairy nutrient management plans;
(c) Inform conservation districts of activities and experiences of other conservation districts relative to agricultural water quality protection, and facilitate an interchange of advice, experience, and cooperation between the districts;
(d) Provide an informal hearing for disputes between dairy producers and local conservation districts pertaining to: (i) Denial of approval or denial of certification of dairy nutrient management plans; (ii) modification or amendment of plans; (iii) conditions contained in plans; (iv) application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and (v) the failure to adhere to the plan review and approval timelines identified in RCW 90.64.026. An informal hearing may also provide an opportunity for dairy producers who are constrained from timely compliance with the planning requirements of this chapter because of financial hardship or local permitting delays to petition for additional time to comply;
(e) Encourage communication between the conservation district personnel and local department personnel;
(f)
((Accept nominations and appoint members to serve on the advisory and
oversight committee with advice of the Washington association of conservation
districts and the department;
(g)
Provide a cochair to the advisory and oversight committee;
(h)))
Report to the legislature by December 1st of each year until 2003 on the status
of dairy nutrient management planning and on the technical assistance provided
to dairy producers in carrying out the requirements of this chapter; and
(((i)))
(g) Work with the department to provide communication outreach to
representatives of agricultural and environmental organizations to receive
feedback on implementation of this chapter.
(2) The commission's capability to carry out its responsibilities under this chapter is contingent upon the availability of funding and resources to implement a dairy nutrient management program.
Sec. 8. RCW 90.64.130 and 1998 c 262 s 9 are each amended to read as follows:
(1)
By October 1, 1998, the department((, in consultation with the advisory and
oversight committee,)) shall develop and maintain a data base to account
for the implementation of this chapter.
(2)
The data base shall track registrations; inspection dates and results,
including findings of violations; regulatory and enforcement actions; and the
status of dairy nutrient management plans. In addition, the number of dairy
farm inspections by inspector shall be tallied by month. ((A summary of
data base information shall be provided quarterly to the advisory and oversight
committee.))
(3) Any information entered into the data base by the department about any aspect of a particular dairy operation may be reviewed by the affected dairy producer upon request. The department shall correct any information in the data base upon a showing that the information is faulty or inaccurate. Complaints that have been filed with the department and determined to be unfounded, invalid, or without merit shall not be recorded in the data base. Appeals of decisions related to dairy nutrient management plans to the pollution control hearings board or to any court shall be recorded, as well as the decisions of those bodies.
Sec. 9. RCW 90.64.140 and 1998 c 262 s 10 are each amended to read as follows:
(1) The conservation commission shall establish four dairy nutrient management technical assistance teams by June 1, 1998. The teams shall be geographically located throughout the state. Each team shall consist of one or more professional engineers, local conservation district employees, and dairy nutrient management experts from Washington State University. The purpose of the teams is to:
(a) Actively develop and promote new cost-effective approaches for managing dairy nutrients; and
(b) Assist dairy farms in developing dairy nutrient management plans.
(2)
By January 1, 1999, each team shall develop one or more initial sets of
standards and specifications to assist dairy producers in developing and
implementing dairy nutrient management plans. Standards and specifications developed
by a technical assistance team shall be appropriate to the soils and other
conditions within that geographic area ((and shall be reviewed by the
advisory and oversight committee)).
Sec. 10. RCW 90.64.800 and 1998 c 262 s 17 are each amended to read as follows:
The
department, in conjunction with the conservation commission ((and advisory
and oversight committee)), shall report to the legislature by December 1st
of each year until 2003, on progress made in implementing chapter 262, Laws of
1998. At a minimum, the reports shall include data on inspections, the status
of dairy nutrient planning, compliance with water quality standards, and
enforcement actions. The report shall also provide recommendations on how
implementation of chapter 262, Laws of 1998 could be facilitated for dairy
producers and generally improved.
The conservation commission shall include in the report to the legislature filed December 1, 1999, an evaluation of whether the fiscal resources available to the commission, to conservation districts, and to Washington State University dairy nutrient management experts are adequate to fund the technical assistance teams established under RCW 90.64.140 and to develop and certify plans as required by the schedule established in RCW 90.64.026. If the funding is insufficient, the report shall include an estimate of the amount of funding necessary to accomplish the schedule contained in RCW 90.64.026.
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