AN ACT Relating to the regulation of dairy
animal feeding operations; and adding a new chapter to Title 90 RCW.
BE
IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1.
The legislature finds that there is a need to establish a clear and
understandable process that provides for the proper and effective management of
dairy waste that affects the quality of surface or ground waters in the state
of Washington. The legislature finds that there is a need for a program that
will provide a stable and predictable business climate upon which dairy farms
may base future investment decisions.
The legislature finds that federal regulations
require a permit program for dairies over seven hundred head of mature cows
and, other specified dairy farms that directly discharge into waters or are
otherwise significant contributors of pollution. The legislature finds that
significant work has been ongoing over a period of time and that the intent of
this chapter is to take the consensus that has been developed and place it into
statutory form.
It is also the intent of this chapter to
recognize the existing working relationships between conservation districts, the
conservation commission, and the department of ecology in protecting water
quality of the state. A further purpose of this chapter is to provide
statutory recognition of the coordination of the functions of conservation
districts, the conservation commission, and the department of ecology
pertaining to development of dairy waste management plans for the protection of
water quality.
NEW SECTION. Sec. 2.
Unless the context clearly requires otherwise, the definitions in this section
apply throughout this chapter.
(1) "Conservation commission" or
"commission" means the conservation commission under chapter 89.08
RCW.
(2) "Conservation districts" or
"district" means a subdivision of state government organized under
chapter 89.08 RCW.
(3) "Concentrated dairy animal feeding
operation" means a dairy animal feeding operation subject to regulation
under this chapter which the director designates under section 4 of this act or
meets the following criteria:
(a) Has more than seven hundred mature dairy
cows, whether milked or dry cows, that are confined; or
(b) Has more than two hundred head of mature
dairy cattle, whether milked or dry cows, that are confined and either:
(i) From which pollutants are discharged into
navigable waters through a manmade ditch, flushing system, or other similar
manmade device; or
(ii) From which pollutants are discharged
directly into surface or ground waters of the state that originate outside of
and pass over, across, or through the facility or otherwise come into direct
contact with the animals confined in the operation.
(4) "Dairy animal feeding operation"
means a lot or facility where the following conditions are met;
(a) Dairy animals that have been, are, or will
be stabled or confined and fed for a total of forty-five days or more in any
twelve-month period; and
(b) Crops, vegetation forage growth, or
postharvest residues are not sustained in the normal growing season over any
portion of the lot or facility. Two or more dairy animal feeding operations
under common ownership are considered, for the purposes of this chapter, to be
a single dairy animal feeding operation if they adjoin each other or if they
use a common area for land application of wastes.
(5) "Department" means the department
of ecology under chapter 43.21A RCW.
(6) "Director" means the director of
the department of ecology, or his or her designee.
NEW SECTION. Sec. 3.
(1) The director of the department of ecology may designate any dairy animal
feeding operation as a concentrated dairy animal feeding operation upon
determining that it is a significant contributor of pollution to the surface or
ground waters of the state. In making this designation the director shall
consider the following factors:
(a) The size of the animal feeding operation
and the amount of wastes reaching waters of the state;
(b) The location of the animal feeding
operation relative to waters of the state;
(c) The means of conveyance of animal wastes
and process waters into the waters of the state;
(d) The slope, vegetation, rainfall, and other
factors affecting the likelihood or frequency of discharge of animal wastes and
process waste waters into the waters of the state; and
(e) Other relevant factors as established by
the department by rule.
(2) A notice of intent to apply for a permit
shall not be required from a concentrated dairy animal feeding operation
designated under this section until the director has conducted an on-site
inspection of the operation and determined that the operation should and could
be regulated under the permit program.
NEW SECTION. Sec. 4.
Upon receiving a complaint or upon its own determination that a dairy animal
feeding operation is a likely source of water quality degradation, the department
may investigate a dairy animal feeding operation to determine whether the
operation is discharging directly pollutants or recently has discharged
directly pollutants into surface or ground waters of the state. The department
shall investigate a written complaint filed with the department within ten days
and shall make a written report of its findings including the results of any
water quality measurements, photographs, or other pertinent information. A
copy of the findings shall be provided upon request to the dairy animal feeding
operation.
Those dairy animal feeding operations that are
determined to be a significant contributor of pollution based on actual water
quality tests, photographs, or other pertinent information if immediate
corrective actions are not possible, shall be designated as a concentrated
dairy animal feeding operation and shall be subject to the provisions of this
chapter.
NEW SECTION. Sec. 5.
Enforcement actions and administrative orders issued by the department of
ecology may be appealed to the pollution control hearings board in accordance
with the provisions of chapter 43.21B RCW.
NEW SECTION. Sec. 6.
(1) The department has the following duties:
(a) Identify existing or potential water
quality problems resulting from dairy farms;
(b) Receive, process, and verify complaints
concerning discharge of pollutants from all dairy farms regardless of size;
(c) Determine if a dairy-related water quality
problem requires immediate corrective action under the Washington state water
pollution control laws, chapter 90.48 RCW, the Washington state water quality
standards adopted under chapter 90.48 RCW, or other authorities. The
department shall maintain the lead enforcement responsibility;
(d) Administer and enforce national pollutants
discharge elimination system permits for operators of concentrated dairy animal
feeding operations, where required by federal regulations, and administer state
laws;
(e) Appoint representatives, including dairy
industry representatives, to participate in the compliance review committee
that will annually review and update policy and disseminate information as
needed;
(f) Encourage communication between local
department personnel and the appropriate conservation district personnel;
(g) Encourage the use of federal soil
conservation service standards and specifications in designing best management
practices for dairy waste management plans to protect water quality;
(h) Provide to the commission an annual report
of dairy waste pollution enforcement activities.
(2) The department may not delegate its
responsibilities in enforcement.
NEW SECTION. Sec. 7.
(1) If the department determines that the operator of a dairy animal feeding
operation has the means to correct a water quality problem in a manner that
will prevent future contamination and does so promptly and such correction is
maintained, the department shall cease pursuit of the complaint.
(2) If the department determines that an
unresolved water quality problem from a dairy animal feeding operation requires
immediate corrective action, the department shall notify the operator and the
district in which the problem is located.
(3) If immediate action is not necessary by the
department, the handling of complaints will differ depending on the amount of
information available and the compliance option selected by the conservation
district involved.
(a) When the name and address of the party
against whom the complaint was registered are known:
(i) Districts operating at levels 1 and 2 will
receive a copy of complaint information, and compliance letter if one was sent
out.
(ii) Districts operating at levels 3 and 4 will
receive a copy of complaint information and the letter sent by the department
to the operator informing the operator of the complaint and providing the
operator with the opportunity to work with the conservation district on a
voluntary basis.
(b) The department and the conservation
district will work together at the local level to resolve complaints when the
name and address of the party against whom the complaint was registered are
unknown.
NEW SECTION. Sec. 8.
(1) The conservation district has the following duties:
(a) Adopt and annually update the water quality
section in the conservation district dairy waste management plan;
(b) As part of the district annual report,
include a water quality progress report on dairy waste management activities
conducted that are related to this chapter;
(c) Encourage communication between the
conservation district personnel and local department personnel;
(d) Adopt and carry out a compliance option
from level 1, level 2, level 3, or level 4.
(2) The district's capability to carry out its
responsibilities in the four levels of compliance is contingent upon the
availability of funding and resources to implement a dairy waste management
program.
NEW SECTION. Sec. 9.
(1) The conservation commission has the following duties:
(a) Forward to the department the dairy waste
management plan progress reports;
(b) Provide assistance as may be appropriate to
the conservation districts in the discharge of their responsibilities as
management agencies in dairy waste management program implementation;
(c) Provide coordination for conservation
district programs at the state level through special arrangements with
appropriate federal and state agencies;
(d) Inform conservation districts of activities
and experiences of other conservation districts relative to agricultural water
quality protection, and facilitate an interchange of advice, experience, and
cooperation between the districts;
(e) Encourage communication between the
conservation district personnel and local department personnel;
(f) Appoint conservation district
representatives to serve on the compliance review committee with advice of the
Washington association of conservation districts;
(g) Appoint a commission representative to
participate on the compliance review committee that will annually review and
update policy and disseminate information as needed;
(h) Work with the department to provide
communication outreach to representatives of agricultural and environmental
organizations to receive feed back on implementation of this chapter.
(2) The commission's capability to carry out
its responsibilities under this chapter is contingent upon the availability of
funding and resources to implement a dairy waste management program.
NEW SECTION. Sec. 10.
Conservation districts shall adopt one of the following compliance levels:
(1) Level 1 - Information/education/technical
assistance.
The conservation district will serve as a local
source of information on dairy waste management plan implementation programs.
The conservation district will promote plans and efforts to improve water
quality and explain the benefits of participating in available implementation
plans through news releases and other media for the general public; programs
for schools; presentations to groups and civic organizations; workshops;
training sessions; or other appropriate means. The conservation district will
provide technical assistance upon request.
The department will respond to complaints that
involve water quality problems caused by dairy animal feeding operations. The
department will work with the operator to bring the operation into compliance
with federal statutes, federal regulations, and applicable state laws. If
immediate action is deemed necessary, the department will pursue the
appropriate actions that may include enforcement against the responsible
parties. The department will advise the operator of the information and
technical assistance available through the conservation district. The
department will notify the conservation district of the operator's need for
information or technical assistance.
(2) Level 2 - Information/education, problem
assessment, and handling complaints.
The conservation district will carry out
programs described in level 1. In addition, the conservation district will
inventory dairy waste related water quality problems defined in the water
quality section of its annual plan. The conservation district will prioritize
problems and work to apply voluntary solutions to the highest priority problems
within available resources utilizing information/education, technical assistance,
and incentives. Response to complaint - The conservation district will make an
appointment for an on-site contact with the alleged violator within ten working
days and determine if the operator desires to work with the conservation
district. If the operator wishes conservation district assistance, within six
months the conservation district will develop a plan with the individual
operator which includes a schedule for application of best management
practices. The operator will have eighteen months, or by agreement, an
approved schedule with an alternative time period to implement the plan. If
hardships occur, the operator may request an extension of the implementation
schedule subject to concurrence of the department.
The conservation district in responding to
complaints will report progress, or the need for further department technical
expertise, to the individual involved and the department. A copy of the plan
will be made available to the department. If the district offers assistance
and the individual involved refuses to cooperate or ceases to work with the
conservation district, the district will notify the department.
The conservation district will refer all
alleged water quality violations, or individuals who wish to make a complaint
to the department.
The department will investigate and seek
resolution of all complaints that appear to need immediate action and refer all
other complaints concerning dairy animal feeding operations to the appropriate
conservation district. The department will keep a record of those complaints.
When a referral is made by a conservation district, due to a continuing
unresolved water quality problem, the department will take appropriate action
and advise the conservation district of the action taken.
(3) Level 3 - Information/education, problem
assessment, handling complaints, and assisting in compliance.
The conservation district will carry out
programs described in levels 1 and 2. In addition, the conservation district
will actively follow up those problems and complaints deemed highest priority
by the conservation district within sixty days after the initial contact. The
complaint referral follow-up will include:
(a) Meet with the owner/operator;
(b) Make an on-site assessment of the nature
and extent of the problem, if so desired by the owner/operator;
(c) Notify within twenty-five working days the
department that the owner/operator has or has not requested assistance from the
conservation district;
(d) Assist the owner/operator in the
development of a dairy waste management plan within six months. Implementation
is to be completed within eighteen months, or by agreement and approved
schedule, with an alternative time period to implement the plan. If hardships
occur, the operator may request an extension of the planning or implementation
schedule with concurrence of the department;
(e) Provide such technical assistance as is
necessary and available during plan implementation;
(f) Monitor plan implementation;
(g) Notify the department within twenty-five
working days in the event that the owner/operator either refuses to cooperate
in the development of a dairy waste management plan that will correct the
problems identified during the on-site assessment, or fails to implement the
plan within the designated time period;
(h) By June 30 of each year, submit a formal
summary of progress on alleged water quality violations referred to the
conservation district by the department.
The department will investigate and seek
resolution of all complaints that appear to need immediate action.
The department will pursue all activities
addressed under level 2. Except that on those sites where the conservation
district is making progress on water quality problems caused from dairy animal
feeding operations and is reporting the same to the department, the department
will hold any related enforcement actions in abeyance until the problem is
solved, or the operator refuses to cooperate further. The department shall
continue to pursue any immediate action where required.
(4) Level 4 - Compliance.
The conservation district will carry out
programs described in levels 1 through 3. In addition, the conservation
district will provide information and direct support for resolving water
quality actions which may be filed by the department pursuant to its statutory
authority.
Information and support include the following:
(a) A field site tour to provide information
and attempt to resolve the issues;
(b) Provision for access to public information
in a conservation district's files, and if appropriate, in-house documents such
as field notes, photographs, and in-house memoranda. Access is subject to
applicable laws and regulations;
(c) Department interviews with appropriate
conservation district personnel regarding a site under enforcement;
(d) Assistance and attendance, if appropriate,
at negotiation sessions with responsible parties;
(e) Affidavits or testimony necessary to
document the case.
The department will pursue all activities as
addressed in level 3, except where the conservation district has been involved,
the department will utilize the information and support offered by the
conservation district to resolve the matter.
NEW SECTION. Sec. 11. A
party acting under this chapter is not liable for another party's actions under
this chapter.
NEW SECTION. Sec. 12.
The department may adopt rules as necessary to implement this chapter.
NEW SECTION. Sec. 13.
Nothing in this chapter shall affect the department's authority or
responsibility to administer or enforce the national pollutant discharge
elimination system permits for operators of concentrated dairy animal feeding
operations, where required by federal regulations or to administer the
provisions of chapter 90.48 RCW.
NEW SECTION. Sec. 14.
Sections 1 through 13 of this act shall constitute a new chapter in Title 90
RCW.
