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AN ACT Relating to flood damage reduction; amending RCW 43.21C.020, 86.12.200, 86.16.025, 86.26.105, 75.20.100, 75.20.100, 75.20.103, 75.20.103, 75.20.130, 75.20.130, 79.90.150, 79.90.300, 90.58.030, 90.58.180, 47.28.140, 86.15.030, 86.15.050, 86.15.160, and 86.16.031; adding a new section to chapter 35.13 RCW; adding a new section to chapter 35A.14 RCW; adding new sections to chapter 43.17 RCW; adding a new section to chapter 86.26 RCW; adding new sections to chapter 75.20 RCW; adding a new section to chapter 79.90 RCW; creating new sections; repealing RCW 79.90.325; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature finds that river and stream systems can threaten public and private property during flood events. The legislature therefore declares that reducing flood damage through the use of structural and nonstructural projects is in the public interest and that it is the duty of the state to properly fund flood control projects. Structural and nonstructural projects include but are not limited to: Streambank stabilization, storage facilities, river channel maintenance, land use restrictions, land buy-outs, flood easements, and emergency notification.

PART I

LAND USE PLANNING

Sec. 101. RCW 43.21C.020 and 1971 ex.s. c 109 s 2 are each amended to read as follows:

(1) The legislature, recognizing that ((~~man~~)) people depend((s)) on ((~~his~~)) their biological and physical surroundings for food, shelter, and other needs, and for cultural enrichment as well((;)), and recognizing further the profound impact of ((~~man's~~)) human activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource utilization and exploitation, and new and expanding technological advances, and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of ((~~man~~)) people, declares that it is the continuing policy of the state of Washington, in cooperation with federal and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to: (a) Foster and promote the general welfare; (b) ((to)) create and maintain conditions under which ((~~man~~)) people and nature can exist in productive harmony; and (c) fulfill the social, economic, and other requirements of present and future generations of Washington citizens.

(2) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the state of Washington and all agencies of the state to use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(b) Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

(c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(d) Preserve important historic, cultural, and natural aspects of our national heritage;

(e) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(f) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; ((~~and~~))

(g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources; and

(h) Provide for the prevention, minimization, and repair of flood damage as defined in RCW 86.16.120.

(3) The legislature recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

Sec. 102. RCW 86.12.200 and 1991 c 322 s 3 are each amended to read as follows:

The county legislative authority of any county may adopt a comprehensive flood control management plan for any drainage basin that is located wholly or partially within the county.

A comprehensive flood control management plan shall include the following elements:

(1) Designation of areas that are susceptible to periodic flooding, from inundation by bodies of water or surface water runoff, or both, including the river's meander belt or floodway;

(2) Establishment of a comprehensive scheme of flood control protection and improvements for the areas that are subject to such periodic flooding, that includes: (a) Determining the need for, and desirable location of, flood control improvements to protect or preclude flood damage to structures, works, and improvements, based upon a ((~~cost/benefit~~)) cost-benefit ratio between the expense of providing and maintaining these improvements and the benefits arising from these improvements; (b) establishing the level of flood protection that each portion of the system of flood control improvements will be permitted; (c) identifying potential impacts of in-stream flood control work on the state's in-stream resources, meander belt, or floodway and considering alternatives to in-stream flood control work; (d) identifying areas where flood waters could be directed during a flood to avoid damage to buildings and other structures; ((~~and~~)) (e) identifying areas where a river may migrate into a new channel and developing options to prevent the creation of the new channel, and identifying practices that will avoid long-term accretion of sediments; and (f) identifying sources of revenue that will be sufficient to finance the comprehensive scheme of flood control protection and improvements;

(3) Establishing land use regulations that preclude the location of structures, works, or improvements in critical portions of such areas subject to periodic flooding, including a river's meander belt or floodway, and permitting only flood-compatible land uses in such areas;

(4) Establishing restrictions on construction activities in areas subject to periodic floods that require the flood proofing of those structures that are permitted to be constructed or remodeled; and

(5) Establishing restrictions on land clearing activities and development practices that exacerbate flood problems by increasing the flow or accumulation of flood waters, or the intensity of drainage, on low-lying areas. Land clearing activities do not include forest practices as defined in chapter 76.09 RCW.

A comprehensive flood control management plan shall be subject to the minimum requirements for participation in the national flood insurance program, requirements exceeding the minimum national flood insurance program that have been adopted by the department of ecology for a specific flood plain pursuant to RCW 86.16.031, and rules adopted by the department of ecology pursuant to chapter 86.16 RCW and RCW 86.26.050 relating to flood plain management activities. When a county plans under chapter 36.70A RCW, it ((~~may~~)) must incorporate the portion of its comprehensive flood control management plan relating to land use restrictions in its comprehensive plan and development regulations adopted pursuant to chapter 36.70A RCW.

Sec. 103. RCW 86.16.025 and 1989 c 64 s 2 are each amended to read as follows:

With respect to such features as may affect flood conditions, the department shall have authority to examine, approve or reject designs and plans for any structure or works, public or private, to be erected or built or to be reconstructed or modified upon the banks or in or over the channel or over and across the federal emergency management agency floodway of any stream or body of water in this state.

Sec. 104. RCW 86.26.105 and 1986 c 46 s 5 are each amended to read as follows:

((A comprehensive flood control management plan shall determine the need for flood control work, consider alternatives to in-stream flood control work, identify and consider potential impacts of in-stream flood control work on the state's in-stream resources, and identify the river's meander belt or floodway.))

(1) A comprehensive flood control management plan shall be completed and adopted ((~~within at least three years of the certification that it is being prepared, as provided in RCW 86.26.050~~)) by December 31, 1998. If after this ((~~three-year period~~)) date has elapsed such a comprehensive flood control plan has not been completed and adopted, grants for flood control maintenance projects shall not be made to the county or municipal corporations in the county until a comprehensive flood control plan is completed and adopted by the appropriate local authority. These limitations on grants shall not preclude allocations for emergency purposes made pursuant to RCW 86.26.060.

(2) A county with two or more presidentially declared flood disasters within the most recent ten-year period shall complete a comprehensive flood control plan by December 31, 1998, or within two years of a second presidentially declared flood disaster.

NEW SECTION. Sec. 105. A new section is added to chapter 35.13 RCW to read as follows:

(1) No city or town may annex territory located within the designated flood plain unless the city or town establishes zoning and use requirements for the territory to be annexed that are consistent with the comprehensive flood control management plan of the county of jurisdiction.

(2) As used in this section, "flood plain" means land area susceptible to being inundated by water from inland or tidal waters creating a general and temporary condition of partial or complete inundation of normally dry land areas.

NEW SECTION. Sec. 106. A new section is added to chapter 35A.14 RCW to read as follows:

(1) No code city may annex territory located within the designated flood plain unless the city establishes zoning and use requirements for the territory to be annexed that are consistent with the comprehensive flood control management plan of the county of jurisdiction.

NEW SECTION. Sec. 107. A new section is added to chapter 43.17 RCW to read as follows:

The heads of state agencies shall provide leadership in encouraging a broad and unified effort to prevent uneconomic uses and development of Washington flood plains and in particular, to promote the public health, safety, and welfare and to reduce the risk of flood losses in connection with Washington lands and installations and state‑financed or state‑supported improvements.

In planning the location for new facilities, state agencies directly responsible for the construction of state buildings, structures, highways, roads, recreational facilities, or other facilities shall evaluate flood hazards and as far as practicable shall preclude the uneconomic, hazardous, or unnecessary use of flood plains in connection with the facilities.

Whenever practical and economically feasible, floodproofing measures shall be applied to existing facilities to reduce flood damage potential.

State agencies responsible for the review or approval of sewage treatment plants, water treatment plants, interceptor sewers, subdivisions, trailer parks, and other facilities within the state shall evaluate flood hazards in writing in connection with the review and approval of facilities. These state agencies shall take measures to minimize the exposure to potential flood damage to facilities and development that the facilities may induce, and the need for future state expenditures for flood protection and flood disaster relief.

State agencies responsible for programs that entail land use planning shall take flood hazards into account when evaluating applications for planning grants and when reviewing water and wastewater facility plans, area‑wide wastewater management plans, and comprehensive land‑use plans.

Requests for appropriations for state construction of new buildings, structures, roads, or other facilities by state agencies shall be accompanied by a statement on the findings of the agency's evaluation and consideration of flood hazards in development of such requests.

NEW SECTION. Sec. 108. A new section is added to chapter 86.26 RCW to read as follows:

A flood protection project is work necessary to preserve, restore, or improve either natural or human-made stream banks or flood control facilities that repair or prevent flood damage as defined in RCW 86.16.120 including but not limited to damage by erosion, stream flow, sheet runoff, or other damages by the sea or other bodies of water.

NEW SECTION. Sec. 109. The department of transportation shall assess all areas in the state in which road or bridge construction has impacted the flood plain and the normal flow of flood waters. The department shall report its findings and a plan for corrective action to the legislature by December 31, 1995. The plan for corrective action shall, to the greatest extent practicable, emphasize planned renovation or reconstruction efforts for the roads and bridges outlined in the assessment.

NEW SECTION. Sec. 110. RCW 79.90.325 and 1984 c 212 s 10 are each repealed.

PART II

PERMITTING

NEW SECTION. Sec. 201. A new section is added to chapter 43.17 RCW to read as follows:

Each appropriate agency shall actively seek to encourage through permit requirements the removal of accumulated materials from rivers and streams where there is a flood damage reduction benefit. Each agency shall develop policies to accomplish this goal. Policies shall be developed from a designed, open-channel hydraulic engineering criteria to facilitate the natural downstream movement of detrimental material.

NEW SECTION. Sec. 202. A new section is added to chapter 75.20 RCW to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply to RCW 75.20.100, 75.20.103, and 75.20.130.

(1) "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.

(2) "Commercial" means a facility or building used for commerce, including those used for agricultural or industrial purposes.

(3) "Emergency" means an immediate threat to life, public land, or private property, or an immediate threat of serious environmental degradation.

(4) "Local flood control agency" means a diking district, drainage district, flood control zone district, or other similar flood control entity.

(5) "Streambank stabilization" includes but is not limited to log and debris removal; bank protection including riprap, jetties, and groins; gravel removal; and erosion control.

(6) "To construct any form of hydraulic project or perform other work" does not include the act of driving across an established ford.

NEW SECTION. Sec. 203. A new section is added to chapter 75.20 RCW to read as follows:

The permitting department may impose the following conditions on persons applying under RCW 75.20.100 or 75.20.103:

(1) The permittee shall establish an excavation line. "Excavation line" means a line on the dry bed, parallel to the water's edge unless otherwise stated, that changes with water level fluctuations.

(2) The permittee may not remove bed material from the water side of the excavation line.

(3) The permittee shall begin excavating at the excavation line and proceed toward the bank, perpendicular to the alignment of the watercourse.

(4) The permittee shall keep the maximum distance of excavation toward the bank from the excavation line approximately equal throughout the excavation zone. "Excavation zone" means the area between the excavation line and the bank.

(5) The permittee shall identify the excavation zone with boundary markers.

(6) The permittee shall maintain a minimum one-half percent gradient upward from the excavation line in the excavation zone.

(7) The permittee shall ensure that the excavation zone is free of pits or potholes.

(8) The permittee shall not stockpile or spoil excavated materials within the ordinary high water line except from June 15 to October 15.

(9) The permittee may not allow any equipment within the wetted perimeter of the watercourse without specific permission.

(10) The permittee shall dispose of debris in the excavation zone so it does not reenter the watercourse.

(11) The permittee may not perform gravel washing or crushing operations below the ordinary high water line.

(12) The permittee shall be allowed to remove only that amount of rock, sand, gravel, or silt that is naturally replenished on an annual basis, except in instances where a lapse in material removal has occurred. If a lapse has occurred, then an amount of material equivalent to the amount estimated to have accumulated since the last material removal operation, including debris and vegetation, may be removed.

NEW SECTION. Sec. 204. A new section is added to chapter 75.20 RCW to read as follows:

The departments of fish and wildlife, natural resources, and ecology shall jointly develop a memorandum of understanding to facilitate the consideration of projects that will aid in the minimization or prevention of flood damage as defined in RCW 86.16.120. To reduce the duplication of information required by a project's permits, the departments must provide in their memorandum procedures to share data to the extent practicable among themselves and with other agencies that may be involved in approving or denying a permit application. The departments' memorandum must provide a plan to implement a comprehensive permit process that is streamlined and easily understandable to permit applicants.

Sec. 205. RCW 75.20.100 and 1993 sp.s. c 2 s 30 are each amended to read as follows:

(1) 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 as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld. Except as provided in RCW 75.20.1001 ((~~and 75.20.1002~~)), the department 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)~~)) (a) 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)~~)) (b) the site is physically inaccessible for inspection; or ((~~(3)~~)) (c) the applicant requests delay. Immediately upon determination that the forty-five day period is suspended, the department 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 the department denies approval, the 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.

(2) In making a decision as to whether fish life is protected, the department shall determine if a project as proposed or modified:

(a) Improves fish life or habitat over the long term to compensate for any potential short-term losses; or

(b)(i) Protects a residential, commercial, or industrial facility or structure that the department determines is likely to incur significant flood damage during the next flood season if the project is not completed; and (ii) lessens the loss of fish life or habitat as compared to a project resulting from an emergency request under this section.

The department shall approve a project if it determines that the project meets either (a) or (b) of this subsection.

(3) 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 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.

(4) In case of an emergency arising from weather or stream flow conditions or other natural conditions, upon request the department, through its authorized representatives, shall ((~~issue~~)) grant immediately ((~~upon request~~)), oral approval for removing any obstructions, repairing existing structures, restoring stream banks, or ((~~to protect~~)) protecting property threatened by the stream or a change in the stream flow without ((~~the necessity of obtaining~~)) requiring 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.~~))

(5) In granting approval for projects submitted by local flood control agencies, the department shall grant a special duration hydraulic permit approval if the submitted project is a multiyear maintenance program. The approval shall be granted for up to five years, or the actual number of years covered by the maintenance program.

(6) This section shall not apply to a project involving the repair of an existing flood control reduction facility if the project is determined by the county to be:

(a) Consistent with a currently approved comprehensive flood control management plan; and

(b) Necessary to avoid flood damage during the next flood season.

(7) 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.

Sec. 206. RCW 75.20.103 and 1993 sp.s. c 2 s 32 are each amended to read as follows:

(1) In the event that any person or government agency desires to construct any form of hydraulic project or other work that diverts water for agricultural irrigation or stock watering purposes, or when such hydraulic project or other work is associated with streambank stabilization or flood damage reduction to protect farm and agricultural land as defined in RCW 84.34.020, and when such ((~~diversion or streambank stabilization~~)) hydraulic project will use, divert, obstruct, or change the natural flow or bed of any river or stream or will utilize any waters of the state or materials from the stream beds, the person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure a written approval from the department as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld. Except as provided in RCW 75.20.1001 ((~~and 75.20.1002~~)), the department shall grant or deny the 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.

(2) A complete application for an approval shall:

(a) Contain general plans for the overall project, complete plans and specifications of the proposed construction or work within ordinary high water line, and complete plans and specifications for the proper protection of fish life; and

(b) Not be required to include notice of compliance with any applicable requirements of the state environmental policy act. Final approval of a project may not be granted until any applicable requirements of the state environmental policy act have been satisfied.

(3) The forty-five day requirement shall be suspended if ((~~(1)~~)):

(a) 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)~~))

(b) The site is physically inaccessible for inspection; ((~~or (3)~~)) (c) After forty-four days of receipt of a complete application, a notice of compliance with the state environmental policy act has not been issued; or

(d) The applicant requests delay.

(4) Immediately upon determination that the forty-five day period is suspended, the department shall notify the applicant in writing of the reasons for the delay.

(5) In making a decision as to whether fish life is protected, the department shall determine if a project as proposed or modified:

(a) Improves fish life or habitat over the long term to compensate for any potential short-term losses; or

The department shall approve a project if it determines that the project meets either (a) or (b) of this subsection.

(6) An approval shall remain in effect without need for periodic renewal for projects that divert water for agricultural irrigation or stock watering purposes and that involve seasonal construction or other work. Approval for streambank stabilization projects shall remain in effect without need for periodic renewal if the problem causing the need for the streambank stabilization occurs on an annual or more frequent basis. The permittee must notify the appropriate agency before commencing the construction or other work within the area covered by the approval.

(7) 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 the department denies approval, the 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. Issuance, denial, conditioning, or modification shall be appealable to the hydraulic appeals board established in RCW 43.21B.005 within thirty days of the notice of decision. The burden shall be upon the department to show that the denial or conditioning of an approval is solely aimed at the protection of fish life.

(8) The department may, after consultation with the permittee, modify an approval due to changed conditions. The modifications shall become effective unless appealed to the hydraulic appeals board within thirty days from the notice of the proposed modification. The burden is on the department to show that changed conditions warrant the modification in order to protect fish life.

(9) A permittee may request modification of an approval due to changed conditions. The request shall be processed within forty-five calendar days of receipt of the written request. A decision by the department may be appealed to the hydraulic appeals board within thirty days of the notice of the decision. The burden is on the permittee to show that changed conditions warrant the requested modification and that such modification will not impair fish life.

(10) 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 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.

(11) In granting approval for projects submitted by local flood control agencies, the department shall grant a special duration hydraulic permit approval if the submitted project is a multiyear maintenance program. The approval shall be granted for up to five years, or the actual number of years covered by the maintenance program.

(12) In case of an emergency arising from weather or stream flow conditions or other natural conditions, the department, through its 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.

((For purposes of this chapter, "streambank stabilization" shall include but not be limited to log and debris removal, bank protection (including riprap, jetties, and groins), gravel removal and erosion control.))

(13) This section shall not apply to a project involving the repair of an existing flood control facility if the project is determined by the county to be:

(a) Consistent with a previously approved comprehensive flood control management plan; and

(b) Necessary to avoid flood damage during the next flood season.

Sec. 207. RCW 75.20.130 and 1993 sp.s. c 2 s 37 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 the department under the authority granted in RCW 75.20.103 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 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.

(c) If a review proceeding authorized in (a) of this subsection finds for the aggrieved permit applicant, the applicant may be awarded any legal and engineering costs involved in challenging the permit decision.

NEW SECTION. Sec. 208. A new section is added to chapter 79.90 RCW to read as follows:

(1) Use or modification, or both, of a river system shall involve basic hydraulic principles, as well as harmonize as much as possible with existing aquatic ecosystems, and human needs.

(2) The department, commissioner, and board shall:

(a) Give priority consideration to the preservation of the streamway environment with special attention given to preservation of those areas considered aesthetically or environmentally unique;

(b) Encourage bank and island stabilization programs that rely mainly on natural vegetative systems as holding elements;

(d) Recognize natural plant and animal communities and other features that provide an ecological balance to a streamway in evaluating competing human uses and require protection from significant human impact; and

(e) Recognize that hydraulic conditions may require the installation of riprap or other similar measure to further protect natural systems of stabilization.

(3) No person may remove normal stream depositions of logs, uprooted tree snags, and stumps that abut on shorelands and do not intrude on the navigational channel or reduce flow, or adversely redirect a river course, and are not harmful to life and property without the department's permission but the department must consider the need to protect the resultant dependent aquatic systems.

(4) No person may fill indentations such as mudholes, eddies, pools, and aeration drops without permission of the department.

(5) The department shall encourage and may permit river channel relocations and improvements when public benefit can be shown. Filling, grading, lagooning, or dredging that would result in substantial detriment to navigable waters by reason of erosion, sedimentation, or impairment of fish and aquatic life are not authorized.

(6) No person may remove sand and gravel below the wetted perimeter of navigable rivers unless authorized by a hydraulics permit issued by the department of fish and wildlife under RCW 75.20.100 and 75.20.103. These removals may be authorized for maintenance and improvement of navigational channels or for creating backwater channels for fish rearing or improvement of the flow capacity of the channels.

(7) The department may allow sand and gravel removals above the wetted perimeter of a navigable river that are not harmful to public health and safety if any or all of the following situations exist:

(a) The removal is designed to create or improve a feature such as a pond, wetland, or other habitat valuable for fish and wildlife;

(b) The removal provides recreational benefits;

(c) The removal will aid in reducing a detrimental accumulation of aggregates in downstream lakes, reservoirs, and river beds;

(d) The removal will aid in reducing damage to private or public land and property abutting a navigable river; or

(e) The removal will contribute to increased flood protection for private or public land.

(8) The department may not allow sand and gravel removals above the wetted perimeter of a navigable river when:

(a) The location of such material is below a dam and has inadequate supplementary feeding of gravel or sand;

(b) Removal will cause unstable hydraulic conditions detrimental to fish, wildlife, public health, and safety; or

(9) No person may perform bank dumping or junk revetment on aquatic lands.

(10) The department shall condition sand and gravel removal leases to allow removal of only that amount that is naturally replenished on an annual basis, except in instances where a lapse in material removal has occurred. If such a lapse has occurred, then an amount of material equivalent to the amount estimated to have accumulated since the last material removal operation, including debris and vegetation, may be removed.

Sec. 209. RCW 79.90.150 and 1991 c 337 s 1 are each amended to read as follows:

When gravel, rock, sand, silt or other material from any aquatic lands is removed by any public agency or under public contract for channel or harbor improvement, or flood control, use of such material may be authorized by the department of natural resources for a public purpose on land owned or leased by the state or any municipality, county, or public corporation: PROVIDED, That when no public land site is available for deposit of such material, its deposit on private land with the landowner's permission is authorized and may be designated by the department of natural resources to be for a public purpose. Prior to removal and use, the state agency, municipality, county, or public corporation contemplating or arranging such use shall first obtain written permission from the department of natural resources. No payment of royalty shall be required for such gravel, rock, sand, silt, or other material used for such public purpose, but a charge will be made if such material is subsequently sold or used for some other purpose: PROVIDED, That the department may authorize such public agency or private landowner to dispose of such material without charge when necessary to implement disposal of material. No charge shall be required for any use of the material obtained under the provisions of this chapter when used solely on an authorized site. No charge shall be required for any use of the material obtained under the provisions of this chapter if the material is used for public purposes by local governments. No charge may be required for removal or use of such material if the removal of the material is determined by the local government to be for flood control purposes. Public purposes include, but are not limited to, construction and maintenance of roads, dikes, and levies. Nothing in this section shall repeal or modify the provisions of RCW 75.20.100 or eliminate the necessity of obtaining a permit for such removal from other state or federal agencies as otherwise required by law.

Sec. 210. RCW 79.90.300 and 1991 c 322 s 26 are each amended to read as follows:

(1) The department of natural resources, upon application by any person or when determined by the department to be in the best interest of the state, may enter into a contract or lease providing for the removal and sale of rock, gravel, sand, and silt, or other valuable materials located within or upon beds of navigable waters, or upon any tidelands or shorelands belonging to the state and providing for payment to be made therefor by such royalty as the department may fix, by negotiation, by sealed bid, or at public auction. If application is made for the purchase of any valuable material situated within or upon aquatic lands the department shall inspect and appraise the value of the material in the application. The department may reduce or eliminate royalties in areas prone to flooding. Removal of material from within the ordinary high water mark shall be construed as being removed for flood control purposes. The department may include a provision in contracts for the removal of rock, gravel, sand, or silt that allows for payment to be made as the material is sold.

(2) The department shall actively seek to encourage through permit requirements and adjusted fees the removal of accumulated materials from rivers and streams where there is a flood damage reduction benefit. The department shall develop policies to accomplish this goal.

Sec. 211. RCW 90.58.030 and 1987 c 474 s 1 are each amended to read as follows:

As used in this chapter, unless the context otherwise requires, the following definitions and concepts apply:

(1) Administration:

(a) "Department" means the department of ecology;

(b) "Director" means the director of the department of ecology;

(c) "Local government" means any county, incorporated city, or town which contains within its boundaries any lands or waters subject to this chapter;

(d) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state or local governmental unit however designated;

(e) "Hearing board" means the shoreline hearings board established by this chapter.

(2) Geographical:

(a) "Extreme low tide" means the lowest line on the land reached by a receding tide;

(b) "Ordinary high water mark" on all lakes, streams, and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department: PROVIDED, That in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark adjoining fresh water shall be the line of mean high water;

(c) "Shorelines of the state" are the total of all "shorelines" and "shorelines of state-wide significance" within the state;

(d) "Shorelines" means all of the water areas of the state, including reservoirs, and their associated wetlands, together with the lands underlying them; except (i) shorelines of state-wide significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;

(e) "Shorelines of state-wide significance" means the following shorelines of the state:

(i) The area between the ordinary high water mark and the western boundary of the state from Cape Disappointment on the south to Cape Flattery on the north, including harbors, bays, estuaries, and inlets;

(ii) Those areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca between the ordinary high water mark and the line of extreme low tide as follows:

(A) Nisqually Delta‑-from DeWolf Bight to Tatsolo Point,

(B) Birch Bay‑-from Point Whitehorn to Birch Point,

(D) Skagit Bay and adjacent area‑-from Brown Point to Yokeko Point, and

(E) Padilla Bay‑-from March Point to William Point;

(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide;

(iv) Those lakes, whether natural, artificial, or a combination thereof, with a surface acreage of one thousand acres or more measured at the ordinary high water mark;

(v) Those natural rivers or segments thereof as follows:

(A) Any west of the crest of the Cascade range downstream of a point where the mean annual flow is measured at one thousand cubic feet per second or more,

(B) Any east of the crest of the Cascade range downstream of a point where the annual flow is measured at two hundred cubic feet per second or more, or those portions of rivers east of the crest of the Cascade range downstream from the first three hundred square miles of drainage area, whichever is longer;

(vi) Those wetlands associated with (i), (ii), (iv), and (v) of this subsection (2)(e);

(f) "Wetlands" or "wetland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all marshes, bogs, swamps, and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology((~~: PROVIDED, That~~)). However, any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet ((~~therefrom~~));

(g) "Floodway" means those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition. The floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state.

(3) Procedural terms:

(a) "Guidelines" means those standards adopted to implement the policy of this chapter for regulation of use of the shorelines of the state prior to adoption of master programs. Such standards shall also provide criteria to local governments and the department in developing master programs;

(b) "Master program" shall mean the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020;

(c) "State master program" is the cumulative total of all master programs approved or adopted by the department of ecology;

(d) "Development" means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level;

(e) "Substantial development" shall mean any development of which the total cost or fair market value exceeds two thousand five hundred dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; except that the following shall not be considered substantial developments for the purpose of this chapter:

(i) Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements;

(ii) Reconstruction or improvements to dikes and levees if the reconstruction or improvement is determined by a county to be consistent with a flood control management plan developed under chapter 86.26 RCW;

(iii) Streambed maintenance including sediment removal, sediment disposal, and streambank stabilization if performed to provide public flood control benefit as determined by the appropriate county legislative authority;

(iv) Construction of stream flow regulation, retention, or detention facilities if consistent with a flood control management plan developed under chapter 86.26 RCW;

(v) Construction of the normal protective bulkhead common to single family residences;

((~~(iii)~~)) (vi) Emergency construction necessary to protect property from damage by the elements;

((~~(iv)~~)) (vii) Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on wetlands, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels: PROVIDED, That a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the wetlands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;

((~~(v)~~)) (viii) Construction or modification of navigational aids such as channel markers and anchor buoys;

((~~(vi)~~)) (ix) Construction on wetlands by an owner, lessee, or contract purchaser of a single family residence for his own use or for the use of his family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter;

((~~(vii)~~)) (x) Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences, the cost of which does not exceed two thousand five hundred dollars;

((~~(viii)~~)) (xi) Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;

((~~(ix)~~)) (xii) The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;

((~~(x)~~)) (xiii) Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system;

((~~(xi)~~)) (xiv) Any action commenced prior to December 31, 1982, pertaining to (A) the restoration of interim transportation services as may be necessary as a consequence of the destruction of the Hood Canal bridge, including, but not limited to, improvements to highways, development of park and ride facilities, and development of ferry terminal facilities until a new or reconstructed Hood Canal bridge is open to traffic; and (B) the reconstruction of a permanent bridge at the site of the original Hood Canal bridge.

Sec. 212. RCW 90.58.180 and 1994 c 253 s 3 are each amended to read as follows:

(1) Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a request for the same within thirty days of the date of filing as defined in RCW 90.58.140(6).

Concurrently with the filing of any request for review with the board as provided in this section pertaining to a final order of a local government, the requestor shall file a copy of his or her request with the department and the attorney general. If it appears to the department or the attorney general that the requestor has valid reasons to seek review, either the department or the attorney general may certify the request within thirty days after its receipt to the shorelines hearings board following which the board shall then, but not otherwise, review the matter covered by the requestor. The failure to obtain such certification shall not preclude the requestor from obtaining a review in the superior court under any right to review otherwise available to the requestor. The department and the attorney general may intervene to protect the public interest and insure that the provisions of this chapter are complied with at any time within fifteen days from the date of the receipt by the department or the attorney general of a copy of the request for review filed pursuant to this section. The shorelines hearings board shall initially schedule review proceedings on such requests for review without regard as to whether such requests have or have not been certified or as to whether the period for the department or the attorney general to intervene has or has not expired, unless such review is to begin within thirty days of such scheduling. If at the end of the thirty day period for certification neither the department nor the attorney general has certified a request for review, the hearings board shall remove the request from its review schedule.

(2) The department or the attorney general may obtain review of any final order granting a permit, or granting or denying an application for a permit issued by a local government by filing a written request with the shorelines hearings board and the appropriate local government within thirty days from the date the final order was filed as provided in RCW 90.58.140(6).

(3) The review proceedings authorized in subsections (1) and (2) of this section are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings. Judicial review of such proceedings of the shorelines hearings board is governed by chapter 34.05 RCW.

(4) If the review proceedings authorized in subsection (1) of this section find for the requestor, the requestor may be awarded any legal and engineering costs involved in challenging the permit decision.

(5) A local government may appeal to the shorelines hearings board any rules, regulations, or guidelines adopted or approved by the department within thirty days of the date of the adoption or approval. The board shall make a final decision within sixty days following the hearing held thereon.

If the board determines that the rule, regulation, or guideline:

(a) Is clearly erroneous in light of the policy of this chapter; or

(b) Constitutes an implementation of this chapter in violation of constitutional or statutory provisions; or

(d) Was developed without fully considering and evaluating all material submitted to the department by the local government; or

(e) Was not adopted in accordance with required procedures;

the board shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government, a new rule, regulation, or guideline. Unless the board makes one or more of the determinations as hereinbefore provided, the board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect.

((~~(5)~~)) (6) Rules, regulations, and guidelines shall be subject to review in superior court, if authorized pursuant to RCW 34.05.570(2). No review shall be granted by a superior court on petition from a local government unless the local government shall first have obtained review under subsection ((~~(4)~~)) (5) of this section and the petition for court review is filed within three months after the date of final decision by the shorelines hearings board.

PART III

FUNDING

Sec. 301. RCW 47.28.140 and 1991 c 322 s 29 are each amended to read as follows:

When in the opinion of the governing authorities representing the department and any agency, instrumentality, municipal corporation, or political subdivision of the state of Washington, any highway, road, or street will be benefited or improved by constructing, reconstructing, locating, relocating, laying out, repairing, surveying, altering, improving, or maintaining, or by the establishment adjacent to, under, upon, within, or above any portion of any such highway, road, or street of an urban public transportation system, by either the department or any agency, instrumentality, municipal corporation, or political subdivision of the state, and it is in the public interest to do so, the authorities may enter into cooperative agreements wherein either agrees to perform the work and furnish the materials necessary and pay the cost thereof, including necessary engineering assistance, which costs and expenses shall be reimbursed by the party whose responsibility it was to do or perform the work or improvement in the first instance. The work may be done by either day labor or contract, and the cooperative agreement between the parties shall provide for the method of reimbursement. In the case of some special benefit or improvement to a state highway derived from ((~~any project that assists in preventing or minimizing flood damages as defined in RCW 86.16.120 or from~~)) the construction of any public works project, including any urban public transportation system, the department may contribute to the cost thereof by making direct payment to the particular state department, agency, instrumentality, municipal corporation, or political subdivision on the basis of benefits received, but such payment shall be made only after a cooperative agreement has been entered into for a specified amount or on an actual cost basis prior to the commencement of the particular public works project.

In the case of a special benefit or improvement to a state highway derived from a project that assists in preventing or reducing flood damages as defined in RCW 86.16.120, the department shall contribute to the cost of the benefit or improvement by making direct payment to the particular state department, agency, instrumentality, municipal corporation, or political subdivision on the basis of contribution to the problem or benefits received. The department may make payment only after an agreement has been entered into between the department and the appropriate state or local government entity. The department may not make the contribution less than ten percent of the total project cost.

Sec. 302. RCW 86.15.030 and 1969 ex.s. c 195 s 2 are each amended to read as follows:

Upon receipt of a petition asking that a zone be created, or upon motion of the board, the board shall adopt a resolution which shall describe the boundaries of such proposed zone; describe in general terms the flood control needs or requirements within the zone; set a date for public hearing upon the creation of such zone, which shall be not more than thirty days after the adoption of such resolution. Notice of such hearing and publication shall be had in the manner provided in RCW 36.32.120(7).

At the hearing scheduled upon the resolution, the board shall permit all interested parties to be heard. Thereafter, the board may reject the resolution or it may modify the boundaries of such zone and make such other corrections or additions to the resolutions as they deem necessary to the accomplishment of the purpose of this chapter: PROVIDED, That if the boundaries of such zone are enlarged, the board shall hold an additional hearing following publication and notice of such new boundaries: PROVIDED FURTHER, That the boundaries of any zone shall generally follow the boundaries of the watershed area affected: PROVIDED FURTHER, That the immediately preceding proviso shall in no way limit or be construed to prohibit the formation of a county-wide flood control zone district authorized to be created by RCW 86.15.025.

Within ((~~ten~~)) thirty days after final hearing on a resolution, the board shall issue its ((~~order~~)) ordinance creating the flood control zone district.

Sec. 303. RCW 86.15.050 and 1961 c 153 s 5 are each amended to read as follows:

The board ((~~of county commissioners of each county~~)) shall be ex officio, by virtue of their office, supervisors of the zones created in each county. The supervisors of the district shall conduct the business of the flood control zone district according to the regular rules and procedures that it adopts.

Sec. 304. RCW 86.15.160 and 1986 c 278 s 60 are each amended to read as follows:

For the purposes of this chapter the supervisors may authorize:

(1) An annual excess ad valorem tax levy within any zone or participating zones when authorized by the voters of the zone or participating zones under RCW 84.52.052 and 84.52.054;

(2) An assessment upon property, including state property, specially benefited by flood control improvements or storm water control improvements imposed under chapter 86.09 RCW;

(3) Within any zone or participating zones an annual ad valorem property tax levy of not to exceed fifty cents per thousand dollars of assessed value when the levy will not take dollar rates that other taxing districts may lawfully claim and that will not cause the combined levies to exceed the constitutional and/or statutory limitations, and the additional levy, or any portion thereof, may also be made when dollar rates of other taxing units is released therefor by agreement with the other taxing units from their authorized levies under chapter 39.67 RCW;

(4) A charge, under RCW 36.89.080 through 36.89.100, for the furnishing of service to those who are receiving or will receive benefits from storm water control facilities ((~~and~~)) or who are contributing to an increase in surface water runoff. Except as otherwise provided in RCW 90.03.525, any public entity and public property, including the state and state property, shall be liable for the charges to the same extent a private person and privately owned property is liable for the charges, and in setting these rates and charges, consideration may be made of in-kind services, such as stream improvements or donation of property;

(5) The creation of local improvement districts and utility local improvement districts, the issuance of improvement district bonds and warrants, and the imposition, collection, and enforcement of special assessments on all property, including any state-owned or other publicly-owned property, specially benefited from improvements in the same manner as provided for counties by chapter 36.94 RCW.

PART IV

FLOOD HAZARD INFORMATION

Sec. 401. RCW 86.16.031 and 1989 c 64 s 3 are each amended to read as follows:

The department of ecology shall:

(1) Review and approve county, city, or town flood plain management ordinances pursuant to RCW 86.16.041;

(2) When requested, provide guidance and assistance to local governments in development and amendment of their flood plain management ordinances;

(3) Provide technical assistance to local governments in the administration of their flood plain management ordinances;

(4) Provide local governments and the general public with information related to the national flood insurance program;

(5) When requested, provide assistance to local governments in enforcement actions against any individual or individuals performing activities within the flood plain that are not in compliance with local, state, or federal flood plain management requirements;

(6) Establish state minimum requirements that equal minimum federal requirements for the national flood insurance program;

(7) Assist counties, cities, and towns in identifying the location of the one hundred year flood plain, and petitioning the federal government to alter its designations of where the one hundred year flood plain is located if the federally recognized location of the one hundred year flood plain is found to be inaccurate; ((~~and~~))

(8) Establish minimum state requirements for specific flood plains that exceed the minimum federal requirements for the national flood insurance program, but only if:

(a) The location of the one hundred year flood plain has been reexamined and is certified by the department as being accurate;

(b) Negotiations have been held with the affected county, city, or town over these regulations;

(d) The department makes a finding that these increased requirements are necessary due to local circumstances and general public safety; and

(9) File copies of the flood insurance rate maps, provided by the federal emergency management authority for the national flood insurance program, with the county auditor in each county in which property shown on the maps is located. The department shall, on an annual basis, file revised maps with each county auditor in counties for which the maps are revised.

PART V

MISCELLANEOUS

NEW SECTION. Sec. 501. Part headings as used in this act constitute no part of the law.

NEW SECTION. Sec. 502. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.