BP BHEAD INT H

AN ACT Relating to protection and restoration of streamside buffers to provide for water quality and salmonid and shellfish habitat; adding a new chapter to Title 90 RCW; prescribing penalties; and declaring an emergency.

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

NEW SECTION. Sec. 1. (1) The legislature declares that it has a responsibility to the citizens of this state and future generations to protect its public resources, in particular the salmon resource and water quality;

(2) The legislature finds that: (a) Streamside buffers are essential for the protection and restoration of salmonid and shellfish habitat, fisheries resources, and water quality; (b) in their natural state, streamside buffers provide many valuable social and ecological services, including: Controlling erosion, flooding, and storm water runoff, protecting water resources by filtering pollutants, providing for ground water recharge, and providing for habitat for many species of fish, shellfish, and wildlife; (c) streamside protection is currently provided on forestry and urban lands through the forest practices act, chapter 76.09 RCW, and the growth management act, chapter 36.70A RCW, whereas, past and current farm and agricultural land use practices continue to destroy or severely impact natural streamside buffers, salmon habitat, water quality, and fisheries resources; and (d) buffers surrounding all waters of the state are essential to protect and restore the productive capacity of salmonid and shellfish habitat and survival of the fisheries resources;

(3) The legislature further finds and declares it to be in the public interest of this state to create and maintain through the adoption of this chapter a comprehensive state-wide system of laws and rules that will protect and restore streamside buffers and salmon habitat;

(4) The legislature further finds and declares it to be in the public interest of this state to strongly encourage and promote voluntary and cooperative restoration and enhancement of streamside buffers; and

(5) The legislature further finds and declares that it is in the public interest that the applicants for streamside permits should pay for the cost of review and permitting necessary for the environmental protection of these resources.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Applicant" means a person who files an application for a permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a contract vendee, a lessee of the land, the person who actually controls and directs the proposed activity, or the authorized agent of such a person.

(2) "Department" means the department of ecology.

(3) "Director" means the director of the department of ecology.

(4) "Farm and agricultural lands" has the same meaning as defined under RCW 84.34.020(2).

(5) "Person" means an individual, partnership, private, public, or municipal corporation, county, the department or other state or local governmental entity, or association of individuals of whatever nature.

(6) "Streamside buffer" means the area adjacent to aquatic systems with flowing water, that contains both aquatic and terrestrial ecosystems that mutually influence each other.

NEW SECTION. Sec. 3. (1) It is not intended that this chapter repeal, abrogate, or impair an existing rule, easement, covenant, or deed restriction. However, where this chapter imposes greater restriction, the provisions of this chapter prevail.

(2) The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter.

NEW SECTION. Sec. 4. (1) When a provision of another state or local statute or ordinance conflicts with this chapter, that which provides more protection to streamside buffers applies unless specifically provided otherwise in this chapter.

(2) The department is authorized to adopt rules for the purposes of carrying out the provisions of this chapter. Prior to fulfilling the requirements of this chapter, state agencies or general purpose local governments may not grant approval or permission to conduct a regulated activity in a streamside buffer. In addition, other nonregulated activities as described in section 5(1) of this act are prohibited without a permit.

(3) Where streamside boundaries are altered from those defined in section 8(4) of this act, the exact location of the streamside boundary must be determined by the applicant through the performance of a field investigation by a qualified fish or wildlife biologist with appropriate technical expertise. The applicant is required to show the location of the streamside boundary, and other reasonable requirements requested by the department, on a scaled drawing as part of the permit application.

NEW SECTION. Sec. 5. (1) A permit must be obtained from the department, or local government if authorized by the department, prior to undertaking the following activities in a regulated streamside buffer on farm and agricultural lands, unless authorized by section 5(2) of this act:

(a) The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

(b) The dumping, discharging, or filling with any material;

(d) The construction, reconstruction, demolition, or expansion of a structure, including roads;

(e) The destruction or alteration of streamside vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated streamside buffer or water course therein, provided that these activities are not part of a forest practice governed under chapter 76.09 RCW;

(f) Activities that result in a change of water temperature, physical or biological changes to salmon habitat, or introduction of pollutants; or

(g) Existing and ongoing agriculture activities, including but not limited to the production of crops or livestock, farming, horticulture, irrigation, ranching, or grazing of animals.

(2) The following activities are allowed, and may be performed without a permit:

(a) Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife;

(b) Outdoor recreational activities, including fishing, birdwatching, hiking, boating, horseback riding, swimming, canoeing, and bicycling;

(c) The harvesting of wild crops in a manner that is not injurious to natural reproduction of the crops and provided that the harvesting does not require tilling of soil, planting of crops, or alteration of the streamside buffer by changing existing topography, water conditions, or water resources;

(d) Forest practices governed under chapter 76.09 RCW and its rules, except for those practices that convert forest land to another use;

(e) The maintenance, but not construction, of drainage ditches, provided they do not contain salmon;

(f) Education, scientific research, and use of natural trails;

(g) Navigation aids and boundary markers;

(h) Boat mooring buoys;

(i) Site investigative work necessary for land use application submittals;

(j) Normal maintenance, repair, or operation of existing serviceable structures, buildings, or facilities provided that written notice is submitted to the department at least ten days prior to the commencement of the work, and the impacts of the work are minimized;

(k) Minor modification of existing serviceable structures within a buffer zone where modification does not adversely impact streamside buffer functions, provided that written notice is submitted to the department at least ten days prior to the commencement of the work and the impacts of the work are minimized;

(l) Noncommercial lawn care and maintenance; or

(m) Maintenance and operation of existing orchards.

NEW SECTION. Sec. 6. (1) Each applicant must pay a fee at the time an application or notification is submitted under this chapter. All moneys must be deposited in the state general fund.

(2) The department must establish by rule a schedule of fees that will pay for the cost of administration and enforcement of this chapter by the department.

(3) An application fee under subsection (1) of this section must be refunded or credited to the applicant if either the application is disapproved by the department or the application is withdrawn by the applicant due to restrictions imposed by the department.

NEW SECTION. Sec. 7. (1) The department must prescribe the form and contents of the notification and application, including temporary emergency permits.

(2) Except as specifically provided in section 5(2) of this act, no activity described under section 5(1) of this act may occur or be permitted to occur within a regulated streamside buffer without a written permit from the department. An alteration approved by a written permit must comply fully with the requirements and purposes of this chapter, other applicable regulations, and the terms or conditions of the permit. All activities that are not allowed or permitted are prohibited.

NEW SECTION. Sec. 8. (1) A permit may only be granted if the permit, as conditioned, is consistent with the provisions of this chapter. Additionally, permits may only be granted if:

(a) A proposed action prevents or avoids adverse impacts to regulated streamside buffers or takes affirmative and appropriate measures to minimize and compensate for unavoidable impacts; or

(b) Denial of a permit would cause an extraordinary hardship on the applicant.

(2) Streamside buffer permits are not effective and no activity thereunder is allowed during the time provided to file a permit appeal. Regulated activities are prohibited until all appeals have been exhausted.

(3) Maintenance and restoration of streamside buffer functions is required on all waters of the state. The intent of a streamside buffer is to protect and restore five basic streamside forest functions that influence instream and near-stream habitat quality. These include:

(a) Recruitment of large woody debris to the stream. Large woody debris recruitment creates habitat structures necessary to maintain the productive capacity and species diversity of salmonids;

(b) Shade. Shading by the forest canopy maintains cooler water temperatures and influences the availability of oxygen for salmonids;

(c) Bank integrity and root reinforcement. Bank integrity helps maintain habitat quality and water quality by reducing bank erosion and creating habitat structure and instream hiding cover for salmonids;

(d) Runoff filtration. Filtration of nutrients and sediments in runoff, surface and shallow subsurface flows, helps maintain water quality; and

(e) Wildlife habitat. Functional wildlife habitat for streamside dependent species is based on sufficient amounts of streamside vegetation.

(4) All streamside buffers must be horizontally measured from the ordinary high water mark on each bank of the water body. Salmonid-bearing waters, where fish are either seasonally or always present, or it is either fish spawning or migration habitat, must have one-hundred foot buffers. Those waters within one thousand feet where salmon are either seasonally or always present must have seventy-five foot buffers. Nonfish bearing waters must have twenty-five foot buffers. Streamside buffers must not exceed more than twenty percent of the land controlled or owned by a person who is affected by this chapter.

(a) The department must require increased standard buffer zone widths on a case-by-case basis when a larger buffer is necessary to protect streamside functions and values based on local conditions, or when requested by the director of the department of fish and wildlife to provide protection for priority fish, wildlife, and their habitats. This determination must be supported by appropriate documentation.

(b) The department must reduce the standard streamside buffer widths on a case-by-case basis where it can be demonstrated that:

(i) The project is consistent with an approved and enforceable watershed analysis or includes a buffer enhancement plan using native vegetation that substantiates that an enhanced buffer will meet the following performance standards:

(A) For salmonid bearing waters or fish or migration habitat: Maintain ninety-five percent of total large woody debris recruitment expected from a mature conifer stand, eighty-five percent of trees greater than twenty-four inch diameter at breast height, and an average of seventy-five percent canopy cover;

(B) For waters within one thousand feet of salmonid bearing waters: Maintain eighty-five percent of total large woody debris recruitment expected from a mature conifer stand, eighty-five percent of trees greater than eighteen inch diameter at breast height, and an average of seventy-five percent canopy cover;

(C) For non-fish bearing waters: Maintain fifty percent of total large woody debris recruitment expected from a mature conifer stand, eighty-five percent of trees greater than twenty-four inch diameter at breast height, and an average of seventy-five percent canopy cover; and

(ii) The buffer enhancement plan, including a monitoring component, was developed with the department of fish and wildlife.

NEW SECTION. Sec. 9. (1) An act or omission that either damages, injures, or endangers useable salmonid fish habitat or streamside buffers is a public nuisance.

(2) This chapter or a rule adopted under it may be enforced by the department or any other person against a governmental entity or person that fails to comply with the provisions of this chapter, and is not liable for attorneys' fees, damages, or other financial penalties unless grounds for the suit have been determined to be of a frivolous nature by the court of jurisdiction. A prevailing plaintiff is entitled to recover the reasonable attorneys' fees, costs of litigation, expert testimony, participation in administrative appeals or administrative processes, and all other reasonable costs associated with necessary legal actions, as determined by the court of jurisdiction.

(3) The department or a local government is authorized to issue violation notices and administrative orders, levy finds, or institute legal actions in court.

NEW SECTION. Sec. 10. A duly authorized representative of the department has the right to enter upon lands at any reasonable time to inspect permitted practices as necessary to ensure compliance and enforcement with this chapter and the rules adopted under it.

NEW SECTION. Sec. 11. (1) Every person who violates a provision of this chapter or rules adopted under it is subject to a penalty in an amount of not more than ten thousand dollars for every violation. Each and every violation is a separate and distinct offense.

(2) The department must develop procedures and a penalty schedule to determine appropriate amounts to be imposed under this section.

(3) If the amount of a penalty is not paid to the department within thirty days after it becomes due and payable, any person may bring an action or upon the request of the department, the attorney general must bring an action in the name of the state of Washington in the superior court of Thurston county to recover the penalty.

(4) Penalties imposed under this section for violations associated with this chapter are a lien upon the real property of the person assessed the penalty and the department may collect the amount in the same manner provided in chapter 60.04 RCW for mechanics' liens.

NEW SECTION. Sec. 12. (1) The department must assist those landowners who will voluntarily restore and enhance streamside functions. The department must provide coordination for conservation districts and regional fisheries enhancement and other local conservation groups who will assist landowners with voluntary and cooperative restoration and enhancement projects.

(2) The department, in cooperation with the department of agriculture and the conservation commission, must develop recommendations for the legislature that will provide additional tax and other incentives for those landowners who will actively restore and enhance streamside functions.

NEW SECTION. Sec. 13. This act shall be known as the streamside protection act of 1996.

NEW SECTION. Sec. 14. Sections 1 through 15 of this act shall constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 15. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 16. 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.