S-0343

AN ACT Relating to storm water; amending RCW 90.70.060, 36.70A.070, 36.70A.150, 82.02.090, and 86.26.040; adding a new section to chapter 90.03 RCW; adding a new section to chapter 36.70A RCW; adding a new section to chapter 36.70 RCW; adding a new section to chapter 35.63 RCW; adding a new section to chapter 35A.63 RCW; creating a new section; and making an appropriation.

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;

(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; and

(c) Integrate effective storm water management planning and controls into state environmental programs and local land use planning and regulatory programs.

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.

(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.

Sec. 3. RCW 90.70.060 and 1990 c 115 s 5 are each amended to read as follows:

The plan adopted by the authority shall be a positive document prescribing the needed actions for the maintenance and enhancement of Puget Sound water quality. The plan shall address all the waters of Puget Sound, the Strait of Juan de Fuca, and, to the extent that they affect water quality in Puget Sound, all waters flowing into Puget Sound, and adjacent lands. The authority may define specific geographic boundaries within which the plan applies. The plan shall coordinate and incorporate existing planning and research efforts of state agencies and local government related to Puget Sound, and shall avoid duplication of existing efforts. The plan shall include:

(1) A statement of the goals and objectives for long and short- term management of the water quality of Puget Sound;

(2) A resource assessment which identifies critically sensitive areas, key characteristics, and other factors which lead to an understanding of Puget Sound as an ecosystem;

(3) Demographic information and assessment as relates to future water quality impacts on Puget Sound;

(4) An identification and legal analysis of all existing laws governing actions of government entities which may affect water quality management of Puget Sound, the interrelationships of those laws, and the effect of those laws on implementation of the provisions of the plan;

(5) Review and assessment of existing criteria and guidelines for governmental activities affecting Puget Sound's resources, including shoreline resources, aquatic resources, associated watersheds, recreational resources and commercial resources;

(6) Identification of research needs and priorities;

(7) Recommendations for guidelines, standards, and timetables for protection and clean-up activities and the establishment of priorities for major clean-up investments and nonpoint source management, and the projected costs of such priorities;

(8) A procedure assuring local government initiated planning for Puget Sound water quality protection;

(9) Ways to better coordinate federal, state, and local planning and management activities affecting Puget Sound's water quality;

(10) Public involvement strategies, including household hazardous waste education, community clean-up efforts, and public participation in developing and implementing the plan;

(11) Recommendations on protecting, preserving and, where possible, restoring wetlands and wildlife habitat and shellfish beds throughout Puget Sound;

(12) Recommendations for a comprehensive water quality and sediment monitoring program;

(13) Analysis of current industrial pretreatment programs for toxic wastes, and procedures and enforcement measures needed to enhance them;

(14) Recommendations for a program of dredge spoil disposal, including interim measures for disposal and storage of dredge spoil material from or into Puget Sound;

(15) A program for the management of storm water quality;

(16) Definition of major public actions subject to review and comment by the authority because of a significant impact on Puget Sound water quality and related resources, and development of criteria for review thereof;

((~~(16)~~)) (17) Recommendations for implementation mechanisms to be used by state and local government agencies;

((~~(17)~~)) (18) Standards and procedures for reporting progress by state and local governments in the implementation of the plan;

((~~(18)~~)) (19) An analysis of resource requirements and funding mechanisms for updating of the plan and plan implementation; and

((~~(19)~~)) (20) Legislation needed to assure plan implementation.

The authority shall circulate and receive comments on drafts of the plan mandated herein, and keep a record of all relevant comments made at public hearings and in writing. These records should be made easily available to interested persons.

As part of the plan, the authority shall prepare a strategy for implementing the plan that includes, but is not limited to: (a) Setting priorities for implementation of plan elements to facilitate executive and legislative decision making; (b) assessment of the capabilities and constraints, both internal and external to state and local government, that may affect plan implementation; and (c) an analysis of the strategic options in light of the resources available to the state. In developing this strategy, the authority shall consult and coordinate with other related environmental planning efforts.

Sec. 4. RCW 36.70A.070 and 1990 1st ex.s. c 17 s 7 are each amended to read as follows:

The comprehensive plan of a county or city that is required or chooses to plan under RCW 36.70A.040 shall consist of a map or maps, and descriptive text covering objectives, principles, and standards used to develop the comprehensive plan. The plan shall be an internally consistent document and all elements shall be consistent with the future land use map. A comprehensive plan shall be adopted and amended with public participation as provided in RCW 36.70A.140.

Each comprehensive plan shall include a plan, scheme, or design for each of the following:

(1) A land use element designating the proposed general distribution and general location and extent of the uses of land, where appropriate, for agriculture, timber production, housing, commerce, industry, recreation, open spaces, public utilities, public facilities, and other land uses. The land use element shall include population densities, building intensities, and estimates of future population growth. The land use element shall provide for protection of the quality and quantity of ground water used for public water supplies. ((Where applicable, the land use element shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute waters of the state, including Puget Sound or waters entering Puget Sound.)) The land use element shall provide for the prevention and management of storm waters caused by land uses, including the prevention of water quality degradation of Puget Sound and other major water bodies from storm water discharges. The plan shall include level of service standards for storm water management that incorporate the minimum standard provided in section 2 of this act. The storm water portion of the land use element shall be consistent with applicable provisions of the Puget Sound water quality management plan adopted under RCW 90.70.060.

(2) A housing element recognizing the vitality and character of established residential neighborhoods that: (a) Includes an inventory and analysis of existing and projected housing needs; (b) includes a statement of goals, policies, and objectives for the preservation, improvement, and development of housing; (c) identifies sufficient land for housing, including, but not limited to, government-assisted housing, housing for low-income families, manufactured housing, multifamily housing, and group homes and foster care facilities; and (d) makes adequate provisions for existing and projected needs of all economic segments of the community.

(3) A capital facilities plan element consisting of: (a) An inventory of existing capital facilities owned by public entities, showing the locations and capacities of the capital facilities; (b) a forecast of the future needs for such capital facilities; (c) the proposed locations and capacities of expanded or new capital facilities; (d) at least a six-year plan that will finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes; and (e) a requirement to reassess the land use element if probable funding falls short of meeting existing needs and to ensure that the land use element, capital facilities plan element, and financing plan within the capital facilities plan element are coordinated and consistent.

(4) A utilities element consisting of the general location, proposed location, and capacity of all existing and proposed utilities, including, but not limited to, electrical lines, telecommunication lines, and natural gas lines.

(5) Counties shall include a rural element including lands that are not designated for urban growth, agriculture, forest, or mineral resources. The rural element shall permit land uses that are compatible with the rural character of such lands and provide for a variety of rural densities.

(6) A transportation element that implements, and is consistent with, the land use element. The transportation element shall include the following subelements:

(a) Land use assumptions used in estimating travel;

(b) Facilities and services needs, including:

(i) An inventory of air, water, and land transportation facilities and services, including transit alignments, to define existing capital facilities and travel levels as a basis for future planning;

(ii) Level of service standards for all arterials and transit routes to serve as a gauge to judge performance of the system. These standards should be regionally coordinated;

(iii) Specific actions and requirements for bringing into compliance any facilities or services that are below an established level of service standard;

(iv) Forecasts of traffic for at least ten years based on the adopted land use plan to provide information on the location, timing, and capacity needs of future growth;

(v) Identification of system expansion needs and transportation system management needs to meet current and future demands;

(i) An analysis of funding capability to judge needs against probable funding resources;

(ii) A multiyear financing plan based on the needs identified in the comprehensive plan, the appropriate parts of which shall serve as the basis for the six-year street, road, or transit program required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW 35.58.2795 for public transportation systems;

(iii) If probable funding falls short of meeting identified needs, a discussion of how additional funding will be raised, or how land use assumptions will be reassessed to ensure that level of service standards will be met;

(d) Intergovernmental coordination efforts, including an assessment of the impacts of the transportation plan and land use assumptions on the transportation systems of adjacent jurisdictions;

(e) Demand-management strategies.

After adoption of the comprehensive plan by jurisdictions required to plan or who choose to plan under RCW 36.70A.040, local jurisdictions must adopt and enforce ordinances which prohibit development approval if the development causes the level of service on a transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan, unless transportation improvements or strategies to accommodate the impacts of development are made concurrent with the development. These strategies may include increased public transportation service, ride sharing programs, demand management, and other transportation systems management strategies. For the purposes of this subsection (6) "concurrent with the development" shall mean that improvements or strategies are in place at the time of development, or that a financial commitment is in place to complete the improvements or strategies within six years.

The transportation element described in this subsection, and the six-year plans required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW 35.58.2795 for public transportation systems, must be consistent.

Sec. 5. 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. 6. 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. 7. 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.

NEW SECTION. Sec. 8. A new section is added to chapter 36.70 RCW to read as follows:

(1) Each board of county commissioners shall provide procedures for the preparation of basin storm water drainage plans in accordance with this section.

(2) The procedures shall authorize the filing of a petition by a person or persons residing within an area in which a natural watercourse provides for storm water conveyance with the county to prepare a drainage plan for the basin. The county shall grant the petition if it determines that land use developments within the basin that are proposed or reasonably anticipated to occur within the next five years will total ten percent or more of the land area within the basin. The petition may be denied where a drainage plan already exists for the basin that includes the developments proposed or reasonably anticipated for the next five years.

(3) The county shall determine the boundaries of each drainage basin under its jurisdiction pursuant to rules adopted by the department of ecology.

(4) The drainage plan shall:

(a) Provide for the conveyance of storm waters in a manner that meets the standards of section 2 of this act and any other applicable local or state storm water management standards;

(b) Assess and provide for all facilities to be used for storm water conveyance, including artificial detention and retention facilities, natural watercourses, natural wetlands used for storm water management, and other measures;

(c) Provide for an equitable distribution of the costs of storm water management by placing the greatest costs upon those activities having the greatest impact upon storm water volume and degradation of water quality; and

(d) Describe land use regulatory measures to mitigate storm water impacts.

(5) The county shall adopt such ordinances and take such other actions as are necessary to implement an adopted drainage plan.

(6) A drainage plan adopted under this section must be combined with a watershed plan covering the drainage basin that has been approved by the department of ecology. The county need not address issues already addressed in an applicable watershed plan.

NEW SECTION. Sec. 9. A new section is added to chapter 35.63 RCW to read as follows:

(1) Each legislative authority shall provide procedures for the preparation of basin storm water drainage plans in accordance with this section.

(2) The procedures shall authorize the filing of a petition by a person or persons residing within an area in which a natural watercourse provides for storm water conveyance with the legislative authority to prepare a drainage plan for the basin. The legislative authority shall grant the petition if it determines that land use developments within the basin that are proposed or reasonably anticipated to occur within the next five years will total ten percent or more of the land area within the basin. The petition may be denied where a drainage plan already exists for the basin that includes the developments proposed or reasonably anticipated for the next five years.

(3) The legislative authority shall determine the boundaries of each drainage basin under its jurisdiction pursuant to rules adopted by the department of ecology.

(4) The drainage plan shall:

(a) Provide for the conveyance of storm waters in a manner that meets the standards of section 2 of this act and any other applicable local or state storm water management standards;

(d) Describe land use regulatory measures to mitigate storm water impacts.

(5) The legislative authority shall adopt such ordinances and take such other actions as are necessary to implement an adopted drainage plan.

(6) A drainage plan adopted under this section must be combined with a watershed plan covering the drainage basin that has been approved by the department of ecology. The legislative authority need not address issues already addressed in an applicable watershed plan.

NEW SECTION. Sec. 10. A new section is added to chapter 35A.63 RCW to read as follows:

(1) Each legislative authority shall provide procedures for the preparation of basin storm water drainage plans in accordance with this section.

(2) The procedures shall authorize the filing of a petition by a person or persons residing within an area in which a natural watercourse provides for storm water conveyance with the legislative authority to prepare a drainage plan for the basin. The legislative authority shall grant the petition if it determines that land use developments within the basin that are proposed or reasonably anticipated to occur within the next five years will total ten percent or more of the land area within the basin. The petition may be denied where a drainage plan already exists for the basin that includes the developments proposed or reasonably anticipated for the next five years.

(3) The legislative authority shall determine the boundaries of each drainage basin under its jurisdiction pursuant to rules adopted by the department of ecology.

(4) The drainage plan shall:

(a) Provide for the conveyance of storm waters in a manner that meets the standards of section 2 of this act and any other applicable local or state storm water management standards;

(d) Describe land use regulatory measures to mitigate storm water impacts.

(5) The legislative authority shall adopt such ordinances and take such other actions as are necessary to implement an adopted drainage plan.

Sec. 11. RCW 86.26.040 and 1988 c 36 s 63 are each amended to read as follows:

Whenever state grants under this chapter are used in a flood control maintenance project, the engineer of the county within the project is located shall approve all plans for the specific project and shall supervise the work. The approval of such plans, construction, and expenditures by the department of ecology, in consultation with the department of fisheries and the department of wildlife, shall be a condition precedent to state participation in the cost of any project beyond planning and designing the specific project.

Additionally, state grants may be made to counties for preparation of a comprehensive flood management plan required to be prepared under RCW 86.26.050 and to counties and cities for the preparation of drainage basin plans pursuant to section 8 of this act.

NEW SECTION. Sec. 12. The sum of four hundred thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1993, from the flood control assistance account to the department of ecology for the purposes of making grants to cities and counties for the preparation of drainage basin plans pursuant to sections 8, 9, and 10 of this act.