S-1137

AN ACT Relating to the protection of the food fish resource; amending RCW 75.20.100 and 75.20.130; adding new sections to chapter 75.20 RCW; and prescribing penalties.

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

Sec. 1. RCW 75.20.100 and 1988 c 272 s 1 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 except as provided in section 2 of this 1991 act. This approval shall not be unreasonably withheld. 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 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. 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. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. 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.

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.

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. These irrigation or stock watering diversion and streambank stabilization projects shall be governed by RCW 75.20.103.

NEW SECTION. Sec. 2. A new section is added to chapter 75.20 RCW to read as follows:

(1) If a property owner or the owner's representative applies to the department of fisheries for approval for a hydraulic project conducted on his or her property and if that property is a single-family residence, the following conditions shall apply.

(a) The department of fisheries shall grant or deny approval within thirty calendar days of the receipt of a complete application, 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.

(b) The thirty-day requirement shall be suspended if (i) 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; (ii) the site is physically inaccessible for inspection; or (iii) the applicant requests a delay. Immediately upon determination that the thirty-day period is suspended, the department of fisheries shall notify the applicant in writing of the reasons for the delay.

(c) Approval is valid for a period of up to five years from date of issuance. The permittee shall demonstrate substantial progress on construction of that portion of the project relating to the approval within two years of the date approval was obtained. The department of fisheries shall not deny approval unless the department can provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life and written scientific evidence that such adverse effect shall occur. The department of fisheries shall provide such statement and evidence to the applicant if approval is denied. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. Chapter 34.05 RCW applies to any denial of project approval, conditional approval, or requirements for project modification upon which approval may be contingent.

(d) 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 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.

(e) If a person or government agency convicted of violating any of the provisions of this section continues construction on any works or projects without fully complying with this section, then the works or projects are a public nuisance and are subject to abatement.

(2) For the purposes of this section and RCW 75.20.103, "bed" means the land below the ordinary high water lines of state waters. This definition does 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 humans.

(3) The phrase "to construct any form of hydraulic project or perform other work" does 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.

(4) In case of an emergency arising from weather or stream flow conditions or other natural conditions, the department of fisheries, through its authorized representatives, shall issue immediately upon request oral approval to remove any obstructions, repair existing structures, restore 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 before 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 for a stream crossing during an emergency situation shall be granted immediately upon request.

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

NEW SECTION. Sec. 3. A new section is added to chapter 75.20 RCW to read as follows:

The director of fisheries shall establish an advisory committee to develop new and review existing technical provisions for hydraulic project permit conditions that would commonly apply to projects conducted on property that is a single-family residence. The advisory committee shall comprise, at a minimum, technical experts in the fields of bulkhead construction, fish biology, civil engineering, and hydrology. By October 1991, the committee shall make recommendations to the director on appropriate technical provisions. These recommendations shall be based on scientific evidence that demonstrates the association of project activities with impacts on fish life. The director shall adopt rules to implement these provisions. A field manual describing and illustrating these provisions shall be written and made available to field personnel of the department of fisheries.

Sec. 4. RCW 75.20.130 and 1989 c 175 s 160 are each amended to read as follows:

(1) There is hereby created within the environmental hearings office under RCW 43.21B.005 the hydraulic appeals board of the state of Washington.

(2) The hydraulic appeals board shall consist of three members: The director of the department of ecology or the director's designee, the director of the department of agriculture or the director's designee, and the director or the director's designee of the department whose action is appealed under subsection (6) of this section. A decision must be agreed to by at least two members of the board to be final.

(3) The board may adopt rules necessary for the conduct of its powers and duties or for transacting other official business.

(4) The board shall make findings of fact and prepare a written decision in each case decided by it, and that finding and decision shall be effective upon being signed by two or more board members and upon being filed at the hydraulic appeals board's principal office, and shall be open to public inspection at all reasonable times.

(5) The board has exclusive jurisdiction to hear appeals arising from the approval, denial, conditioning, or modification of a hydraulic approval issued by either the department of fisheries or the department of wildlife under the authority granted in RCW 75.20.103 or issued under section 2 of this 1991 act for the diversion of water for agricultural irrigation or stock watering purposes or when associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020.

(6) (a) Any person aggrieved by the approval, denial, conditioning, or modification of a hydraulic approval pursuant to RCW 75.20.103 or issued under section 2 of this 1991 act may seek review from the board by filing a request for the same within thirty days of notice of the approval, denial, conditioning, or modification of such approval.

(b) The review proceedings authorized in (a) of this subsection are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings.