S-1218

AN ACT Relating to storm water; amending RCW 36.70A.150 and 82.02.090; adding a new section to chapter 90.03 RCW; adding a new section to chapter 36.70A 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:

(a) Washington state is characterized by high annual rainfall including locally exceptional precipitation causing high flood peaks;

(b) Such events cause enormous property damage and personal injury that are devastating to many individuals and present high costs to the state for emergency services, disaster assistance, and the repair and replacement of roads, bridges, utilities, and other public works;

(c) Inadequate storm water planning and controls contribute to the magnitude of flooding events, and, additionally, cause damage on a more frequent basis during lesser storm events;

(d) Many land uses alter the pattern of storm water runoff by decreasing the ability of upstream lands to store storm waters, thus increasing the rate of runoff and attendant downstream impacts; and

(e) Many land use developments for residential, commercial, or industrial activities employ natural watercourses for storm water conveyance, and if such systems are not properly designed, the capacity of the watercourse may be exceeded, causing downstream damage;

(2) It is the intent of the legislature to:

(a) Define a minimum standard to guide all land use development activities employing natural watercourses for storm water conveyance; and

(b) Overrule the "common enemy" doctrine adopted by the Washington courts which often works to preclude the recovery of damages by landowners against upstream landowners whose actions have exceeded the natural storm water conveyance capacity of a natural watercourse.

NEW SECTION. Sec. 2. A new section is added to chapter 90.03 RCW to read as follows:

(1) No person may divert, impound, or otherwise alter the natural flow of surface waters or water flowing in a natural watercourse, or permit a diversion, impounding, or alteration to continue, in a manner that damages the property of another by the overflow of the water diverted, impounded, or altered.

(2) A person unlawfully diverting, impounding, or altering the natural flow of surface waters or water flowing in a natural watercourse shall be liable in an action for property damages to a person whose property is damaged by such unlawful diversion, impoundment, or alteration. Such person shall not be liable under this section where the action was taken in compliance with a permit issued by a state agency or local government that includes requirements for management of storm water.

(3) For purposes of this section, "natural watercourse" means a channel with a defined bed and banks or a depression or swale that in its natural condition acts to drain water flowing perennially or intermittently.

(4) This section shall not apply to the diversion and collection of water for irrigation of agricultural lands, including the discharge of used irrigation water.

(5) This section shall apply only to actions taken subsequent to the effective date of this act.

Sec. 3. RCW 36.70A.150 and 1990 1st ex.s. c 17 s 15 are each amended to read as follows:

Each county and city that is required or chooses to prepare a comprehensive land use plan under RCW 36.70A.040 shall identify lands useful for public purposes such as utility corridors, transportation corridors, landfills, sewage treatment facilities, storm water retention, recreation, schools, and other public uses. The county shall work with the state and the cities within its borders to identify areas of shared need for public facilities. The jurisdictions within the county shall prepare a prioritized list of lands necessary for the identified public uses including an estimated date by which the acquisition will be needed.

The respective capital acquisition budgets for each jurisdiction shall reflect the jointly agreed upon priorities and time schedule.

Sec. 4. RCW 82.02.090 and 1990 1st ex.s. c 17 s 48 are each amended to read as follows:

Unless the context clearly requires otherwise, the following definitions shall apply in RCW 82.02.050 through 82.02.090:

(1) "Development activity" means any construction or expansion of a building, structure, or use, any change in use of a building or structure, or any changes in the use of land, that creates additional demand and need for public facilities.

(2) "Development approval" means any written authorization from a county, city, or town which authorizes the commencement of development activity.

(3) "Impact fee" means a payment of money imposed upon development as a condition of development approval to pay for public facilities needed to serve new growth and development, and that is reasonably related to the new development that creates additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities, and that is used for facilities that reasonably benefit the new development. "Impact fee" does not include a reasonable permit or application fee.

(4) "Owner" means the owner of record of real property, although when real property is being purchased under a real estate contract, the purchaser shall be considered the owner of the real property if the contract is recorded.

(5) "Proportionate share" means that portion of the cost of public facility improvements that are reasonably related to the service demands and needs of new development.

(6) "Project improvements" mean site improvements and facilities that are planned and designed to provide service for a particular development project and that are necessary for the use and convenience of the occupants or users of the project, and are not system improvements. No improvement or facility included in a capital facilities plan approved by the governing body of the county, city, or town shall be considered a project improvement.

(7) "Public facilities" means the following capital facilities owned or operated by government entities: (a) Public streets and roads; (b) publicly owned parks, open space, and recreation facilities; (c) storm water management facilities; (d) school facilities; and ((~~(d)~~)) (e) fire protection facilities in jurisdictions that are not part of a fire district.

(8) "Service area" means a geographic area defined by a county, city, town, or intergovernmental agreement in which a defined set of public facilities provide service to development within the area. Service areas shall be designated on the basis of sound planning or engineering principles.

(9) "System improvements" mean public facilities that are included in the capital facilities plan and are designed to provide service to service areas within the community at large, in contrast to project improvements.

NEW SECTION. Sec. 5. A new section is added to chapter 36.70A RCW to read as follows:

Within one year of the adoption of comprehensive plans by jurisdictions required to plan or who choose to plan under RCW 36.70A.040, such jurisdictions shall adopt ordinances that require the provision of storm water management facilities concurrently with development approval and that meet the standards for level of service provided in the comprehensive plan.