2628-S

2628-S.E AMS BAIL S4509.1

ESHB 2628 - S AMD

By Senators Bailey, Skratek, Anderson and Barr

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The legislature finds that fish and wildlife resources are affected by changes in habitat caused by flooding. The damage to productive habitat caused by swollen streams and rivers that travel outside of the regular channel is tremendous. Erosion of agricultural lands caused by flooding leads to excess deposits of silt in streams which degrades both water quality and habitat value. Further, urban development upstream of agricultural lands leads to more frequent flooding and increased flood levels which in turn impact agricultural lands and the habitat value they provide. It is therefore in the best interests of the state, its citizens, and the fish and wildlife of the state to properly maintain streams and rivers within the state to minimize or prevent flooding on all lands, especially agricultural and grazing lands. To accomplish this goal, it is the intent of the legislature that all governmental agencies work together with private property owners to provide the most effective flood control possible for the state. It is also the intent of the legislature that all aspects of flooding be addressed such that equal consideration is given to the protection of human life, public land, private property, and fish and wildlife."

"Sec. 2. RCW 75.20.100 and 1991 c 322 s 30 are each amended to read as follows:

In the event that any person or government agency desires to construct any form of hydraulic project or perform other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state, such person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure the written approval of the department of fisheries or the department of wildlife as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld or conditioned. Except as provided in RCW 75.20.1001 and 75.20.1002, the department of fisheries or the department of wildlife shall grant or deny approval within forty‑five calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section. The applicant may document receipt of application by filing in person or by registered mail. A complete application for approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within the mean higher high water line in salt water or within the ordinary high water line in fresh water, and complete plans and specifications for the proper protection of fish life. The department shall develop a checklist to be provided with each application outlining the items necessary to submit a complete application for approval. The forty‑five day requirement shall be suspended if (1) after ten working days of receipt of the application, the applicant remains unavailable or unable to arrange for a timely field evaluation of the proposed project; (2) the site is physically inaccessible for inspection; or (3) the applicant requests delay. Immediately upon determination that the forty‑five day period is suspended, the department of fisheries or the department of wildlife shall notify the applicant in writing of the reasons for the delay. If written notification is not provided to the applicant within ten working days after the department's suspension determination, the permit shall be deemed to have been approved and shall become effective without departmental action after the ten days have elapsed. Approval is valid for a period of up to five years from date of issuance. The permittee must demonstrate substantial progress on construction of that portion of the project relating to the approval within two years of the date of issuance. If either the department of fisheries or the department of wildlife denies approval, that department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life. In determining permit approval, the department of fisheries or the department of wildlife shall give equal consideration to the protection of human life, public land or private property, or both, and fish life as outlined in the state policy to minimize flood damage described in chapter 86.16 RCW. For purposes of this section, "equal consideration" means that if the department finds that a proposed project provides a substantial benefit to the protection of human life and private or public property and has a minor or unproven impact on fish life, the project shall be approved. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. When a project is denied or conditioned, the department of fisheries or the department of wildlife shall provide the applicant technical data supporting the denial or conditioning of the permit. Chapter 34.05 RCW applies to any denial of project approval, conditional approval, or requirements for project modification upon which approval may be contingent. If any person or government agency commences construction on any hydraulic works or projects subject to this section without first having obtained written approval of the department of fisheries or the department of wildlife as to the adequacy of the means proposed for the protection of fish life, or if any person or government agency fails to follow or carry out any of the requirements or conditions as are made a part of such approval, the person or director of the agency is guilty of a gross misdemeanor. If any such person or government agency is convicted of violating any of the provisions of this section and continues construction on any such works or projects without fully complying with the provisions hereof, such works or projects are hereby declared a public nuisance and shall be subject to abatement as such.

For the purposes of this section and RCW 75.20.103, "bed" shall mean the land below the ordinary high water lines of state waters. This definition shall not include irrigation ditches, canals, storm water run‑off devices, or other artificial watercourses except where they exist in a natural watercourse that has been altered by ((man)) people. For the purposes of this section and RCW 75.20.103, "emergency" means an imminent threat to life, public land and private property, or both, or an imminent threat of serious environmental degradation.

The phrase "to construct any form of hydraulic project or perform other work" shall not include the act of driving across an established ford. Driving across streams or on wetted stream beds at areas other than established fords requires approval. Work within the ordinary high water line of state waters to construct or repair a ford or crossing requires approval.

For each application, the department of fisheries and the department of wildlife shall mutually agree on whether the department of fisheries or the department of wildlife shall administer the provisions of this section, in order to avoid duplication of effort. The department designated to act shall cooperate with the other department in order to protect all species of fish life found at the project site. If the department of fisheries or the department of wildlife receives an application concerning a site not in its jurisdiction, it shall transmit the application to the other department within three days and notify the applicant.

In case of an emergency arising from weather or stream flow conditions or other natural conditions, the department of fisheries or department of wildlife, through their authorized representatives, shall issue immediately upon request oral approval for removing any obstructions, repairing existing structures, restoring stream banks, or to protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written approval prior to commencing work. Conditions of an oral approval shall be reduced to writing within thirty days and complied with as provided for in this section. Oral approval shall be granted immediately upon request, for a stream crossing during an emergency situation.

Following a flood equal to or greater than a five-year flood event, the department of fisheries or the department of wildlife shall approve or deny applications for projects that will aid in the prevention or minimization of flood damages as defined in RCW 86.16.120 within fifteen calendar days of receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section.

This section shall not apply to the construction of any form of hydraulic project or other work which diverts water for agricultural irrigation or stock watering purposes authorized under or recognized as being valid by the state's water codes, or when such hydraulic project or other work is associated with streambank stabilization ((to protect farm and agricultural land)) as defined in RCW ((84.34.020)) 75.20.103. These irrigation or stock watering diversion and streambank stabilization projects shall be governed by RCW 75.20.103."

"Sec. 3. RCW 75.20.103 and 1991 c 322 s 31 are each amended to read as follows:

In the event that any person or government agency desires to construct any form of hydraulic project or other work that diverts water for agricultural irrigation or stock watering purposes, or when such hydraulic project or other work is associated with streambank stabilization ((to protect farm and agricultural land as defined in RCW 84.34.020)), and when such diversion or streambank stabilization will use, divert, obstruct, or change the natural flow or bed of any river or stream or will utilize any waters of the state or materials from the stream beds, the person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure a written approval from the department of fisheries or the department of wildlife as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld or conditioned. Except as provided in RCW 75.20.1001 and 75.20.1002, the department of fisheries or the department of wildlife shall grant or deny the approval within forty‑five calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section. The applicant may document receipt of application by filing in person or by registered mail. A complete application for an approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within ordinary high water line, and complete plans and specifications for the proper protection of fish life. The department shall develop a checklist to be provided with each application outlining the items necessary to submit a complete application for approval. The forty‑five day requirement shall be suspended if (1) after ten working days of receipt of the application, the applicant remains unavailable or unable to arrange for a timely field evaluation of the proposed project; (2) the site is physically inaccessible for inspection; or (3) the applicant requests delay.

Immediately upon determination that the forty‑five day period is suspended, the department of fisheries or the department of wildlife shall notify the applicant in writing of the reasons for the delay. If written notification is not provided to the applicant within ten working days after the department's suspension determination, the permit shall be deemed approved and shall become effective without departmental action after the ten days have elapsed.

An approval shall remain in effect without need for periodic renewal for projects that divert water for agricultural irrigation or stock watering purposes and that involve seasonal construction or other work. Approval for streambank stabilization projects shall remain in effect without need for periodic renewal if the problem causing the need for the streambank stabilization occurs on an annual or more frequent basis. The permittee must notify the appropriate agency before commencing the construction or other work within the area covered by the approval.

The permittee must demonstrate substantial progress on construction of that portion of the project relating to the approval within two years of the date of issuance. If either the department of fisheries or the department of wildlife denies approval, that department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life. In determining permit approval, the department of fisheries or the department of wildlife shall give equal consideration to the protection of human life, public land or private property, or both, and fish life as outlined in the state policy to minimize flood damage described in chapter 86.16 RCW. For purposes of this section, "equal consideration" means when the department finds that a proposed project provides a substantial benefit to the protection of human life and private or public property and has a minor or unproven impact on fish life, the project shall be approved. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. When a project is denied or conditioned, the department of fisheries or the department of wildlife shall provide the applicant technical data supporting the denial or conditioning of the permit. Issuance, denial, conditioning, or modification shall be appealable to the hydraulic appeals board established in RCW 43.21B.005 within thirty days of the notice of decision. The burden shall be upon the department of fisheries or the department of wildlife to show that the denial or conditioning of an approval is solely aimed at the protection of fish life.

The department granting approval may, after consultation with the permittee, modify an approval due to changed conditions. The modifications shall become effective unless appealed to the hydraulic appeals board within thirty days from the notice of the proposed modification. The burden is on the department issuing the approval to show that changed conditions warrant the modification in order to protect fish life.

A permittee may request modification of an approval due to changed conditions. The request shall be processed within forty‑five calendar days of receipt of the written request. A decision by the department that issued the approval may be appealed to the hydraulic appeals board within thirty days of the notice of the decision. The burden is on the permittee to show that changed conditions warrant the requested modification and that such modification will not impair fish life.

If any person or government agency commences construction on any hydraulic works or projects subject to this section without first having obtained written approval of the department of fisheries or the department of wildlife as to the adequacy of the means proposed for the protection of fish life, or if any person or government agency fails to follow or carry out any of the requirements or conditions as are made a part of such approval, the person or director of the agency is guilty of a gross misdemeanor. If any such person or government agency is convicted of violating any of the provisions of this section and continues construction on any such works or projects without fully complying with the provisions hereof, such works or projects are hereby declared a public nuisance and shall be subject to abatement as such.

Following a flood equal to or greater than a five-year flood event, the department of fisheries or the department of wildlife shall approve or deny applications for projects that will aid in the prevention or minimization of flood damages as defined in RCW 86.16.120 within fifteen calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section.

For purposes of this chapter, "streambank stabilization" shall include but not be limited to log and debris removal, bank protection (including riprap, jetties, and groins), gravel removal and erosion control."

"NEW SECTION. Sec. 4. A new section is added to chapter 75.20 RCW to read as follows:

The permitting department may impose the following conditions on persons applying under RCW 75.20.100 or 75.20.103:

(1) The permittee shall establish an excavation line. "Excavation line" means a line on the dry bed, parallel to the water's edge unless otherwise stated, that changes with water level fluctuations.

(2) The permittee may not remove bed material from the water side of the excavation line.

(3) The permittee shall begin excavating at the excavation line and proceed toward the bank, perpendicular to the alignment of the watercourse.

(4) The permittee shall keep the maximum distance of excavation toward the bank from the excavation line approximately equal throughout the excavation zone. "Excavation zone" means the area between the excavation line and the bank.

(5) The permittee shall identify the excavation zone with boundary markers.

(6) The permittee shall maintain a minimum one-half percent gradient upward from the excavation line in the excavation zone.

(7) The permittee shall ensure that the excavation zone is free of pits or potholes.

(8) The permittee shall not stockpile or spoil excavated materials within the ordinary high water line except from June 15 to October 15.

(9) The permittee may not allow any equipment within the wetted perimeter of the watercourse without specific permission.

(10) The permittee shall dispose of debris in the excavation zone so it does not reenter the watercourse.

(11) The permittee may not perform gravel washing or crushing operations below the ordinary high water line.

(12) The permittee shall be allowed to remove only that amount of rock, sand, gravel, or silt which is naturally replenished on an annual basis, except in instances where a lapse in material removal has occurred. If such lapse has occurred, then an amount of material equivalent to the amount estimated to have accumulated since the last material removal operation, including debris and vegetation, may be removed."

"NEW SECTION. Sec. 5. A new section is added to chapter 75.20 RCW to read as follows:

The departments of fisheries, wildlife, natural resources, and ecology shall jointly develop a memorandum of understanding to facilitate the consideration of projects that will aid in the minimization or prevention of flood damage as defined in RCW 86.16.120. To reduce the duplication of information required by a project's permits, the departments must provide in their memorandum procedures to share data to the extent practicable among themselves and with other agencies that may be involved in approving or denying a permit application. The departments' memorandum must provide a plan to implement a comprehensive permit process that is streamlined and easily understandable to permit applicants."

"Sec. 6. RCW 79.90.300 and 1991 c 322 s 26 are each amended to read as follows:

The department of natural resources, upon application by any person or when determined by the department to be in the best interest of the state, may enter into a contract or lease providing for the removal and sale of rock, gravel, sand, and silt, or other valuable materials located within or upon beds of navigable waters, or upon any tidelands or shorelands belonging to the state and providing for payment to be made therefor by such royalty as the department may fix, by negotiation, by sealed bid, or at public auction. If application is made for the purchase of any valuable material situated within or upon aquatic lands the department shall inspect and appraise the value of the material in the application. The department may reduce or eliminate royalties in areas prone to flooding. Removal of material from within the ordinary high water mark shall be construed as being removed for flood control purposes. The department may include a provision in contracts for the removal of rock, gravel, sand, or silt which allows for payment to be made as the material is sold."

"NEW SECTION. Sec. 7. A new section is added to chapter 79.90 RCW to read as follows:

(1) Use or modification, or both, of any river system must involve basic hydraulic principles, as well as harmonize as much as possible with existing aquatic ecosystems, and human needs.

(2) The department, commissioner, and board shall:

(a) Give priority consideration to the preservation of the streamway environment with special attention given to preservation of those areas considered aesthetically or environmentally unique;

(b) Encourage bank and island stabilization programs which rely mainly on natural vegetative systems as holding elements;

(d) Recognize natural plant and animal communities and other features that provide an ecological balance to a streamway in evaluating competing human uses and require protection from significant human impact; and

(e) Recognize that hydraulic conditions may require the installation of riprap or other similar measure to further protect natural systems of stabilization.

(3) No person may remove normal stream depositions of logs, uprooted tree snags, and stumps which abut on shorelands and do not intrude on the navigational channel or reduce flow, or adversely redirect a river course, and are not harmful to life and property without the department's permission but the department must consider the need to protect the resultant dependent aquatic systems.

(4) No person may fill indentations such as mudholes, eddies, pools, and aeration drops without permission of the department.

(5) The department may permit river channel relocations only when an overriding public benefit can be shown. Filling, grading, lagooning, or dredging which would result in substantial detriment to navigable waters by reason of erosion, sedimentation, or impairment of fish and aquatic life are not authorized.

(6) No person may remove sand and gravel below the wetted perimeter of navigable rivers unless authorized by a hydraulics permit issued by either the department of fisheries or department of wildlife under RCW 75.20.100 and 75.20.103. These removals may be authorized for maintenance and improvement of navigational channels or for creating backwater channels for fish rearing or improvement of the flow capacity of the channels.

(7) The department may allow sand and gravel removals above the wetted perimeter of a navigable river which are not harmful to public health and safety when any or all of the following situations exist:

(a) The removal is designed to create or improve a feature such as a pond, wetland, or other habitat valuable for fish and wildlife;

(b) The removal provides recreational benefits;

(c) The removal will aid in reducing a detrimental accumulation of aggregates in downstream lakes, reservoirs, and river beds;

(d) The removal will aid in reducing damage to private or public land and property abutting a navigable river; or

(e) The removal will contribute to increased flood protection for private or public land.

(8) The department may not allow sand and gravel removals above the wetted perimeter of a navigable river when:

(a) The location of such material is below a dam and has inadequate supplementary feeding of gravel or sand;

(b) Removal will cause unstable hydraulic conditions detrimental to fish, wildlife, public health, and safety; or

(9) No person may perform bank dumping or junk revetment on aquatic lands.

(10) The department shall condition sand and gravel removal leases to allow removal of only that amount which is naturally replenished on an annual basis, except in instances where a lapse in material removal has occurred. If such a lapse has occurred, then an amount of material equivalent to the amount estimated to have accumulated since the last material removal operation, including debris and vegetation, may be removed."

"NEW SECTION. Sec. 8. RCW 79.90.325 and 1984 c 212 s 10 are each repealed."

"Sec. 9. RCW 86.16.120 and 1935 c 159 s 2 are each amended to read as follows:

Damages within the meaning of this chapter ((shall)) include loss of human life and damages to homes and possessions; harmful inundation((,)); water erosion of soil, stream banks, and beds((,)); stream channel shifting and changes((,)); harmful deposition by water of eroded and shifting soils, rocks, gravel, and debris upon property or in the beds of streams or other bodies of water((,)); damages by high water to public roads, highways, bridges, utilities, and to works built for protection against floods or inundation((,)); the interruption by floods of travel, communication, and commerce((,)); harm to livestock by flood waters; reduction in the flow capacity of streams due to the accumulation of deposited silt, soils, gravel, and other materials in the beds of streams; the accumulations of deposited soils, rocks, gravel, sand, and other materials on stream bars that may result in a change in the flow direction of streams or erosion of stream banks; damage to fisheries, fish propagation facilities, and fish habitat; degradation of scenic, historic, and recreational values of rivers; and all other high water influences and results which injuriously affect the public health and the safety of property."

"Sec. 10. RCW 86.26.007 and 1991 sp.s. c 13 s 24 are each amended to read as follows:

The flood control assistance account is hereby established in the state treasury. At the beginning of each biennium the state treasurer shall transfer from the general fund to the flood control assistance account an amount of money which, when combined with money remaining in the account from the previous biennium, will equal ((four)) six million dollars. Moneys in the flood control assistance account may be spent only after appropriation for purposes specified under this chapter."

"Sec. 11. RCW 86.26.060 and 1984 c 212 s 5 are each amended to read as follows:

Grants for flood control maintenance shall be so employed that as far as possible, funds will be on hand to meet unusual, unforeseeable and emergent flood conditions. Allocations by the department of ecology, for emergency purposes, shall in each instance be in amounts which together with funds provided by local authority, if any, under reasonable exercise of its emergency powers, shall be adequate for the preservation of life and property, and with due regard to similar needs elsewhere in the state. The department shall place a higher priority in allocating funds on flood damage repair projects than all other requests except for work required on flood control management plans under RCW 86.26.050."

"NEW SECTION. Sec. 12. A new section is added to chapter 86.26 RCW to read as follows:

A flood protection project is work necessary to preserve, restore, or improve either natural or human-made stream banks or flood control facilities which repair or prevent flood damage as defined in RCW 86.16.120 including but not limited to damage by erosion, stream flow, sheet runoff, or other damages by the sea or other bodies of water."

"Sec. 13. RCW 90.58.030 and 1987 c 474 s 1 are each amended to read as follows:

As used in this chapter, unless the context otherwise requires, the following definitions and concepts apply:

(1) Administration:

(a) "Department" means the department of ecology;

(b) "Director" means the director of the department of ecology;

(c) "Local government" means any county, incorporated city, or town which contains within its boundaries any lands or waters subject to this chapter;

(d) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state or local governmental unit however designated;

(e) "Hearing board" means the shoreline hearings board established by this chapter.

(2) Geographical:

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

(b) "Ordinary high water mark" on all lakes, streams, and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department: PROVIDED, That in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark adjoining fresh water shall be the line of mean high water;

(c) "Shorelines of the state" are the total of all "shorelines" and "shorelines of state-wide significance" within the state;

(d) "Shorelines" means all of the water areas of the state, including reservoirs, and their associated wetlands, together with the lands underlying them; except (i) shorelines of state-wide significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;

(e) "Shorelines of state-wide significance" means the following shorelines of the state:

(i) The area between the ordinary high water mark and the western boundary of the state from Cape Disappointment on the south to Cape Flattery on the north, including harbors, bays, estuaries, and inlets;

(ii) Those areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca between the ordinary high water mark and the line of extreme low tide as follows:

(A) Nisqually Delta‑-from DeWolf Bight to Tatsolo Point,

(B) Birch Bay‑-from Point Whitehorn to Birch Point,

(D) Skagit Bay and adjacent area‑-from Brown Point to Yokeko Point, and

(E) Padilla Bay‑-from March Point to William Point;

(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide;

(iv) Those lakes, whether natural, artificial, or a combination thereof, with a surface acreage of one thousand acres or more measured at the ordinary high water mark;

(v) Those natural rivers or segments thereof as follows:

(A) Any west of the crest of the Cascade range downstream of a point where the mean annual flow is measured at one thousand cubic feet per second or more,

(B) Any east of the crest of the Cascade range downstream of a point where the annual flow is measured at two hundred cubic feet per second or more, or those portions of rivers east of the crest of the Cascade range downstream from the first three hundred square miles of drainage area, whichever is longer;

(vi) Those wetlands associated with (i), (ii), (iv), and (v) of this subsection (2)(e);

(f) "Wetlands" or "wetland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all marshes, bogs, swamps, and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology((: PROVIDED, That)). However, any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet ((therefrom)). The county or city shall take into account any modifications to the floodway or adjacent land made by the establishment of a flood zone density flood plain or density fringe flood plain, as approved by the department of ecology;

(g) "Floodway" means those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition. The floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state.

(3) Procedural terms:

(a) "Guidelines" means those standards adopted to implement the policy of this chapter for regulation of use of the shorelines of the state prior to adoption of master programs. Such standards shall also provide criteria to local governments and the department in developing master programs;

(b) "Master program" shall mean the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020;

(c) "State master program" is the cumulative total of all master programs approved or adopted by the department of ecology;

(d) "Development" means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level;

(e) "Substantial development" shall mean any development of which the total cost or fair market value exceeds ((two thousand five hundred)) five thousand dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; except that the following shall not be considered substantial developments for the purpose of this chapter:

(i) Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements;

(ii) Construction of the normal protective bulkhead common to single family residences;

(iii) Emergency construction, including flood control and restoration, necessary to protect property from damage by the elements;

(iv) Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on wetlands, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels: PROVIDED, That a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the wetlands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;

(v) Construction or modification of navigational aids such as channel markers and anchor buoys;

(vi) Construction on wetlands by an owner, lessee, or contract purchaser of a single family residence for his own use or for the use of his family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter;

(vii) Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences, the cost of which does not exceed two thousand five hundred dollars;

(viii) Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;

(ix) The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;

(x) Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system;

(xi) Any action commenced prior to December 31, 1982, pertaining to (A) the restoration of interim transportation services as may be necessary as a consequence of the destruction of the Hood Canal bridge, including, but not limited to, improvements to highways, development of park and ride facilities, and development of ferry terminal facilities until a new or reconstructed Hood Canal bridge is open to traffic; and (B) the reconstruction of a permanent bridge at the site of the original Hood Canal bridge."

"Sec. 14. RCW 90.58.100 and 1991 c 322 s 32 are each amended to read as follows:

(1) The master programs provided for in this chapter, when adopted and approved by the department, as appropriate, shall constitute use regulations for the various shorelines of the state. In preparing the master programs, and any amendments thereto, the department and local governments shall to the extent feasible:

(a) Utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts;

(b) Consult with and obtain the comments of any federal, state, regional, or local agency having any special expertise with respect to any environmental impact;

(c) Consider all plans, studies, surveys, inventories, and systems of classification made or being made by federal, state, regional, or local agencies, by private individuals, or by organizations dealing with pertinent shorelines of the state;

(d) Conduct or support such further research, studies, surveys, and interviews as are deemed necessary;

(e) Utilize all available information regarding hydrology, geography, topography, ecology, economics, and other pertinent data;

(f) Employ, when feasible, all appropriate, modern scientific data processing and computer techniques to store, index, analyze, and manage the information gathered.

(2) The master programs shall include, when appropriate, the following:

(a) An economic development element for the location and design of industries, transportation facilities, port facilities, tourist facilities, commerce and other developments that are particularly dependent on their location on or use of the shorelines of the state;

(b) A public access element making provision for public access to publicly owned areas;

(c) A recreational element for the preservation and enlargement of recreational opportunities, including but not limited to parks, tidelands, beaches, and recreational areas;

(d) A circulation element consisting of the general location and extent of existing and proposed major thoroughfares, transportation routes, terminals, and other public utilities and facilities, all correlated with the shoreline use element;

(e) A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for housing, business, industry, transportation, agriculture, natural resources, recreation, education, public buildings and grounds, and other categories of public and private uses of the land;

(f) A conservation element for the preservation of natural resources, including but not limited to scenic vistas, aesthetics, and vital estuarine areas for fisheries and wildlife protection;

(g) An historic, cultural, scientific, and educational element for the protection and restoration of buildings, sites, and areas having historic, cultural, scientific, or educational values;

(h) An element that gives the same consideration to the state‑wide interest in the prevention and minimization of flood damages as defined in RCW 86.16.120 as that given any other master program element; and

(i) Any other element deemed appropriate or necessary to effectuate the policy of this chapter.

(3) The master programs shall include such map or maps, descriptive text, diagrams and charts, or other descriptive material as are necessary to provide for ease of understanding.

(4) Master programs will reflect that state‑owned shorelines of the state are particularly adapted to providing wilderness beaches, ecological study areas, and other recreational activities for the public and will give appropriate special consideration to same.

(5) Each master program shall contain provisions to allow for the varying of the application of use regulations of the program, including provisions for permits for conditional uses and variances, to insure that strict implementation of a program will not create unnecessary hardships or thwart the policy enumerated in RCW 90.58.020. Any such varying shall be allowed only if extraordinary circumstances are shown and the public interest suffers no substantial detrimental effect. The concept of this subsection shall be incorporated in the rules adopted by the department relating to the establishment of a permit system as provided in RCW 90.58.140(3)."

"Sec. 15. RCW 43.21C.020 and 1971 ex.s. c 109 s 2 are each amended to read as follows:

(1) The legislature, recognizing that ((man)) people depend((s)) on ((his)) their biological and physical surroundings for food, shelter, and other needs, and for cultural enrichment as well((;)), and recognizing further the profound impact of ((man's)) human activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource utilization and exploitation, and new and expanding technological advances, and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of ((man)) people, declares that it is the continuing policy of the state of Washington, in cooperation with federal and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to: (a) Foster and promote the general welfare; (b) ((to)) create and maintain conditions under which ((man)) people and nature can exist in productive harmony; and (c) fulfill the social, economic, and other requirements of present and future generations of Washington citizens.

(2) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the state of Washington and all agencies of the state to use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(b) Assure for all people of Washington safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(d) Preserve important historic, cultural, and natural aspects of our national heritage;

(e) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(f) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; ((and))

(g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources; and

(h) Provide for the prevention, minimization, and repair of flood damage as defined in RCW 86.16.120.

(3) The legislature recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment."

"NEW SECTION. Sec. 16. A new section is added to chapter 43.21C RCW to read as follows:

Any governmental agency, whether state, local, or municipal, receiving a permit application for a project that is not a substantial development as defined in RCW 90.58.030(3) and will aid in the prevention or minimization of flood damages as defined in RCW 86.16.120, shall approve or disapprove the application within thirty calendar days from the date the application is received. If the agency determines that a detailed statement must be made, the agency shall approve or disapprove the application within sixty days from the date the application is received, unless, through the promulgation of a formal order, the agency determines that the process cannot be completed within such period.

Following a flood equal to or greater than a five-year flood event, applications for projects to repair or enhance flood protection must be approved or disapproved by the receiving governmental agency within fifteen calendar days from the date the application is received. If the agency determines that a detailed statement must be made, the agency shall approve or disapprove the application within thirty days from the date the application is received, unless, through the promulgation of a formal order, the agency determines that the process cannot be completed within such period. When a project is disapproved or conditioned, the department shall provide the applicant sufficient technical data to support disapproval or conditioning of the permit application."

"Sec. 17. RCW 86.15.160 and 1986 c 278 s 60 are each amended to read as follows:

For the purposes of this chapter the supervisors may authorize:

(1) An annual excess ad valorem tax levy within any zone or participating zones when authorized by the voters of the zone or participating zones under RCW 84.52.052 and 84.52.054;

(2) An assessment upon property, including state property, specially benefited by flood control improvements or storm water control improvements imposed under chapter 86.09 RCW;

(3) Within any zone or participating zones an annual ad valorem property tax levy of not to exceed fifty cents per thousand dollars of assessed value when the levy will not take dollar rates that other taxing districts may lawfully claim and that will not cause the combined levies to exceed the constitutional and/or statutory limitations, and the additional levy, or any portion thereof, may also be made when dollar rates of other taxing units is released therefor by agreement with the other taxing units from their authorized levies;

(4) A charge, under RCW 36.89.080, for the furnishing of service to those who are receiving or will receive benefits from storm water control facilities ((and)) or who are contributing to an increase in surface water runoff. Except as otherwise provided in RCW 90.03.525, any public entity and public property, including the state and state property, shall be liable for the charges to the same extent a private person and privately owned property is liable for the charges, and in setting these rates and charges, consideration may be made of in-kind services, such as stream improvements or donation of property;

(5) The creation of local improvement districts and utility local improvement districts, the issuance of improvement district bonds and warrants, and the imposition, collection, and enforcement of special assessments on all property, including any state-owned or other publicly-owned property, specially benefited from improvements in the same manner as provided for counties by chapter 36.94 RCW."

"NEW SECTION. Sec. 18. If specific funding for the purposes of sections 2, 3, and 16 of this act, referencing sections 2, 3, and 16 of this act by bill and section number, is not provided by June 30, 1992, in the omnibus appropriations act, sections 2, 3, and 16 of this act shall be null and void."

"NEW SECTION. Sec. 19. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately."

ESHB 2628 - S AMD

By Senators Bailey, Skratek, Anderson and Barr

On page 1, line 2 of the title, after "lands;" strike the remainder of the title and insert "amending RCW 43.21C.020, 75.20.100, 75.20.103, 79.90.300, 86.16.120, 86.26.007, 86.26.060, 90.58.030, 90.58.100, and 86.15.160; adding a new section to chapter 43.21C RCW; adding new sections to chapter 75.20 RCW; adding a new section to chapter 79.90 RCW; adding a new section to chapter 86.26 RCW; creating new sections; repealing RCW 79.90.325; and declaring an emergency."