H-2191.1          _______________________________________________

                            SUBSTITUTE HOUSE BILL 1555

                  _______________________________________________

State of Washington              54th Legislature             1995 Regular Session

By House Committee on Agriculture & Ecology (originally sponsored by Representatives McMorris, Foreman, Mastin, Chandler, Chappell, Koster, Boldt, Schoesler, Johnson, Honeyford, Clements, Regala, Basich, Hargrove, L. Thomas, Thompson, Delvin, Elliot, Goldsmith, McMahan, Mulliken, Fuhrman, Stevens and Lisk)

Read first time 03/01/95.

Revising department of ecology entry authority for water quality complaints caused by agricultural activity.

     AN ACT Relating to entry for the purposes of water pollution investigations on agricultural land; amending RCW 90.48.120; adding a new section to chapter 90.48 RCW; and creating a new section.

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 process for handling complaints regarding water quality from uses of private agricultural land near waters of the state.

NEW SECTION. Sec. 2.  A new section is added to chapter 90.48 RCW to read as follows:

     (1) In exercising its authority under RCW 90.48.090, in investigating conditions on private agricultural land, the department must comply with this section.

     (2) Except in the case of an emergency, the department shall provide at least seven days' notice to a person alleged to have engaged in polluting activities before entering private agricultural property to investigate conditions relating to actions causing pollution of the waters of the state.  This notice must also be provided to the private property owner if that person is different from the person alleged to have engaged in polluting activities.

     (3) When the department receives a complaint that pollution has occurred, the department must document the time the alleged pollution occurred, and the name and address of the person who made the complaint.  In the event that the evidence was collected by a department employee, the department must document the name of the employee.  Information revealing the identity of the person who made the complaint is exempt from public inspection and copying to the extent that RCW 42.17.310 applies.

     (4) When the department has an agreement or permit with a person alleged to have engaged in polluting activities, the department shall observe the provisions of the agreement or permit.

     (5) Nothing in this section shall preclude the department from executing a valid search warrant for legal entry onto private property used for agricultural production to investigate compliance with the provisions of RCW 90.48.080 and 90.48.120.

     Sec. 3.  RCW 90.48.120 and 1992 c 73 s 25 are each amended to read as follows:

     (1) Whenever, in the opinion of the department, any person shall violate or creates a substantial potential to violate the provisions of this chapter or chapter 90.56 RCW, or fails to control the polluting content of waste discharged or to be discharged into any waters of the state, the department shall notify such person of its determination by registered mail.  Such determination shall not constitute an order or directive under RCW 43.21B.310.  Within thirty days from the receipt of notice of such determination, such person shall file with the department a full report stating what steps have been and are being taken to control such waste or pollution or to otherwise comply with the determination of the department.  Whereupon the department shall issue such order or directive as it deems appropriate under the circumstances, and shall notify such person thereof by registered mail.

     (2) Whenever the department deems immediate action is necessary to accomplish the purposes of this chapter or chapter 90.56 RCW, it may issue such order or directive, as appropriate under the circumstances, without first issuing a notice or determination pursuant to subsection (1) of this section.  An order or directive issued pursuant to this subsection shall be served by registered mail or personally upon any person to whom it is directed.

(3) The department shall not make a determination as provided under subsection (1) of this section that a violation is occurring or is substantially likely to occur on private agricultural property without cogent, site-specific scientific evidence.  The department shall not deem immediate action necessary as provided under subsection (2) of this section to accomplish the purposes of this chapter or chapter 90.56 RCW on private agricultural property without cogent, site-specific scientific evidence.

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