HOUSE BILL
REPORT
E2SSB 5632
As Reported By
House Committee On:
Agriculture
& Ecology
Appropriations
Title: An act relating to flood damage reduction.
Brief Description: Providing for flood damage reduction.
Sponsors: Senate Committee on Ways & Means (originally
sponsored by Senators A. Anderson, Drew, Owen, Hargrove, Swecker, Morton,
Hale, Haugen, Finkbeiner, Strannigan, Moyer, Palmer, Johnson, Quigley and
Rasmussen).
Brief History:
Committee Activity:
Agriculture & Ecology: 3/27/95 [DPA];
Appropriations: 3/30/95, 4/3/95 [DPA(AG)].
HOUSE COMMITTEE ON AGRICULTURE & ECOLOGY
Majority Report: Do pass as amended.
Signed by 13 members: Representatives Chandler, Chairman; Koster, Vice
Chairman; McMorris, Vice Chairman; Mastin, Ranking Minority Member; Chappell,
Assistant Ranking Minority Member; Boldt; Clements; Delvin; Honeyford; Johnson;
Kremen; Robertson and Schoesler.
Minority Report: Do not pass. Signed by 4 members:
Representatives R. Fisher; Poulsen; Regala and Rust.
Staff: Rick Anderson (786-7114).
Background:
Flood damages
Nearly every county in the state has had one or more federally declared
disasters in the past 20 years. The three flood events of 1990 caused damage
to public and private structures in excess of $160 million.
Flood plain management
Responsibility for flood hazard prevention and management is divided
between a number of federal, state, and local agencies.
The federal government provides low cost flood insurance for
communities that meet minimum requirements through the Federal Emergency
Management Agency (FEMA). To qualify for federal flood insurance, local
governments must adopt, implement, and enforce ordinances that meet federal
flood plain requirements. Approximately 250 cities and counties qualify under
the federal insurance program; 10 percent of eligible cities and counties do
not qualify. Federal law allows development to cause up to a one-foot rise in
the flood plain. FEMA pays 75 percent of eligible costs for damages incurred
during a federally declared flood disaster if the state and locals contribute
25 percent.
The Department of Ecology is required to adopt standards that equal the
federal standards and to review local ordinances to ensure consistency with
these standards. The Department of Ecology issues $4 million in grants each
biennium to help local governments repair and maintain existing flood control
structures and to develop comprehensive flood plans. The state also pays 12.5
to 25 percent of eligible costs for damages incurred during a federally
declared flood disaster.
To qualify for federal flood insurance, local governments must develop
flood plain ordinances that meet federal flood plain requirements. Local
governments are generally responsible for the repair and maintenance of dikes,
levees, and other flood control structures. Local governments, at their
option, may prepare comprehensive flood plans. Local governments are required,
under the Growth Management Act, to develop ordinances to protect frequently
flooded areas. Local governments may pay 12.5 percent of eligible costs for
damages incurred during a federally declared flood disaster.
Permit Requirements for In-stream Work
The Department of Fisheries issues hydraulic project permits for any
project that would use, divert, obstruct, or change the natural flow or bed of
any waters of the state. Protection of fish life is the only grounds upon
which approval may be denied or conditioned. The department is directed to
give immediate oral approval to conduct in-stream work during emergencies. The
Department of Fisheries has also established rules regulating gravel removal
within the waters of the state.
The Department of Natural Resources has authority over aquatic lands.
The department has established rules that govern the use or modification of any
river system, including gravel removal projects.
Summary of Amended Bill: The amended bill is identical to SHB
1597 as it passed out of the House of Representatives.
Legislative Findings:
Legislative findings are made that reducing flood damage through the
use of structural and nonstructural projects is in the public interest.
Land Use:
All development regulations protecting critical areas identified under
the Growth Management Act must be consistent with a flood plain management
plan. All elements of a growth management plan must be consistent with a flood
management plan. Designations of agricultural lands, forest lands, mineral
resource lands, or critical areas under the Growth Management Act must be
consistent with the flood management plan.
The prevention, minimization, and repair of flood damage is added to
the list of responsibilities of the state under the State Environmental Policy
Act.
Gravel Removal
Department of Fish and Wildlife rules for gravel removal are revised
and codified. The excavation line for gravel removal must be parallel to the
water's edge, with the excavation at a minimum gradient of one half percent.
Excavated materials may not be stockpiled within the ordinary high water line
except from June 15 to October 15. Gravel may be removed in an amount equal
to the annual deposit of a stream or river multiplied by the number of years
since the last removal.
Department of Natural Resources rules for river management are revised
and codified. Sand and gravel may be removed in an amount equal to the annual
deposit of a stream multiplied by the number of years since the last removal.
The department may not charge a royalty assessment when a public entity removes
gravel if the local government determines that the gravel removal is for flood
control purposes. The department may reduce or eliminate royalties when the
gravel is removed by a private citizen in areas that are prone to flooding.
Agencies are directed to actively encourage, through permit
requirements, the removal of accumulated materials from rivers and streams
where there is a flood damage reduction benefit.
RCW 79.90.325 is repealed. This statute allows the Department of
Natural Resources to reduce its royalty assessments for gravel removal, if the
gravel removal results in a flood protection benefit.
HPA Permits
The Department of Fish and Wildlife's jurisdiction to regulate
hydraulic projects may not extend past the ordinary high water line in marine
and fresh waters. The department is also prohibited from limiting or
conditioning the amount, timing, or delivery method of water diverted under the
state's water code.
The criteria upon which the Department of Fish and Wildlife approves or
rejects a hydraulic project permit are changed. The department must approve a
project if: (1) a project provides no substantial risk to fish life and
provides fish habitat productivity that is equal to pre-project conditions within
three years; or if (2) the project protects structures likely to incur damage
during the next flood season if the project is not completed, and the project
lessens loss of fish life as compared to a project resulting from an emergency
request. These criteria apply only to projects that are consistent with a
flood control management plan, as determined by the county.
The Department of Fish and Wildlife must grant multiple year authority,
up to five years, when approving a hydraulic project submitted by a local flood
control agency for multi-year maintenance projects.
Projects involving the repair of existing flood control facilities do
not require a hydraulic project permit if they are consistent with the county
flood plan and necessary to avoid flood damage during the next season.
The hydraulic project permit process for agriculturally-related
projects is modified to allow the permit to be worked on concurrently with the
State Environmental Protection Act (SEPA) process. A final decision on the hydraulic
permit cannot be made until the SEPA process has been finalized.
Appeals
Applicants who win a hydraulics project approval permit appeal or
shorelines permit appeal may be awarded legal and engineering costs involved in
the appeal.
Flood Control Zone Districts
Technical and procedural changes are made to the creation and operation
of flood control zone districts. A county is allowed 30 days, instead of 10
days, to issue its ordinance creating a flood control zone district. The
district is authorized to establish a lien for delinquent charges or to
establish an alternative foreclosure procedure.
Flood Planning Requirements
Any county with two or more presidentially declared flood disasters
within the most recent ten-year period is required to complete a comprehensive
flood control plan by December 31, 1998, or within two years of having a second
federally declared flood disaster. Counties that are required to plan, and
have completed a plan, are to receive priority consideration for emergency
funding assistance.
Two new elements are added to the list of items that must be considered
in a local comprehensive flood control management plan: potential channel
migration areas and practices that will avoid long-term accretion of
sediments.
Upon request, the Department of Transportation is required to provide
certain information relating to state highways and bridges to a city or county
that is preparing a comprehensive flood control management plan.
Substantial Development Permits
The following projects are exempt from substantial development permits
(required by local governments under the Shoreline Management Act):
construction of stream flow retention or detention facilities and improvements
to dikes and levees, if the project is consistent with a flood control
management plan; and streambed maintenance, including sediment removal,
sediment disposal, and streambank stabilization, if determined to be a flood
control benefit by the county legislative authority.
Miscellaneous
A flood protection project is defined as work
necessary to preserve, restore, or improve natural or human-made streambanks or
flood control facilities.
By December 31, 1996, the departments of Fish and Wildlife, Natural
Resources, and Ecology are directed to develop a memorandum of understanding to
facilitate the consideration of projects that will aid the prevention of flood
damage. The memorandum must provide a plan to implement a streamlined,
comprehensive permit process.
Amended Bill Compared to Engrossed Second Substitute Bill: The
amended bill makes a number of changes to the way in which to hydraulic
projects are permittted. Specifically, the amended bill: 1) limits the
department's authority to issue hydrualic permits to projects within the
ordinary highwater mark; 2) allows three years, instead of two, before a
hydraulic project must achieve fish habitat productivity that is equal to
pre-project conditions; 3) applies the criteria for fish life only to hydraulic
projects that are for flood control purposes; 4) allows maintenance projects
for flood control structures to receive hydrualic project permits that are
valid for up to five years.
The amended bill adds two categories of flood control projects that are
exempt from substantial development permits.
The following provisions were deleted by the striking amendment: 1)
The Department of Transporation must monetarily contribute to flood control
projects that benefit state highways; 2) The bill is null and void if not
specfically funded in the budget; and 3) A flood planning element requiring
consideration of instream work on instream resources.
Appropriation: None.
Fiscal Note: Available on original bill. New fiscal note
requested on March 24, 1995.
Effective Date of Amended Bill: The bill contains an emergency
clause and takes effect immediately. However, the bill is null and void unless
funded in the budget.
Testimony For: Substitute House Bill 1597 is preferable to the
Senate bill because the House bill restricts the Department of Fish &
Wildlife from issuing permits for hydraulic projects that occur outside of the
ordinary high water mark.
Testimony Against: The comprehensive flood plans should not
have primacy over growth management plans. The bill does not address the root
causes of flooding. Making it easier to dredge will increase, not decrease,
flood damages. The bill allows a hydraulic project to disrupt fish habitat for
two years; entire fish runs can be destroyed in that time.
Testified: Senator Anderson (prime sponsor); Kent Lebsack,
Washington Cattlemen Association (pro); Ed Manary, Department of Fish and
Wildlife (commented); Judy Turpin, Washington Environmental Council (con); Dawn
Vyvyan, Yakima Indian Nation, Skagit System Cooperative, and Northwest Indian
Fisheries Commission (con); Bruce Wishart, Sierra Club (con); Sylviann Frankus,
League of Women Voters of Washington (con); and Mike Grady, Department of
Community, Trade and Economic Development (con).
HOUSE COMMITTEE ON APPROPRIATIONS
Majority Report: Do pass as amended by
Committee on Agriculture & Ecology. Signed by 20 members: Representatives
Silver, Chairman; Clements, Vice Chairman; Huff, Vice Chairman; Pelesky, Vice
Chairman; Basich; Brumsickle; Carlson; Chappell; Crouse; Foreman; Grant;
Hargrove; Hickel; Lambert; Lisk; McMorris; Reams; Sehlin; Sheahan and Talcott.
Minority Report: Do not pass. Signed by 10 members:
Representatives Sommers, Ranking Minority Member; Valle, Assistant Ranking
Minority Member; Cooke; Dellwo; G. Fisher; Jacobsen; Poulsen; Rust;
Thibaudeau and Wolfe.
Staff: Susan Nakagawa (786-7145).
Summary of Recommendation of Committee on Appropriations Compared to
Recommendation of Committee on Agriculture & Ecology: No new changes
were recommended.
Appropriation: None.
Fiscal Note: Available on original bill. New fiscal note
requested on March 24, 1995.
Effective Date of Amended Bill: The bill contains an emergency
clause and takes effect immediately. However, the bill is null and void unless
funded in the budget.
Testimony For: This bill allows property owners to protect
their property. Flood damage costs are extreme. The return to the investment
by passing the bill is considerable. It is imperative for the state to address
flood reduction. The fiscal note estimate by the Department of Fish and
Wildlife is high.
Testimony Against: Sections eight through 10 are a concern for
the Department of Fish and Wildlife because they add liability. If the
department is taken to court, they will be responsible for paying legal and
engineering costs. The bill adds new responsibilities to the department and
there are costs because of this.
Testified: Representative Jim Clements (in favor); and Ed
Manary, Department of Fish and Wildlife (with concerns).