5875-S.E

AN ACT Relating to wetlands mitigation banks; adding a new chapter to Title 90 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. LEGISLATIVE FINDINGS AND PURPOSE. The legislature finds that wetlands compensatory mitigation banks may provide an important alternative, allowing projects that impact wetlands to be approved while ensuring that mitigation for such impacts are achieved. The reform of wetland regulatory programs in part requires greater coordination of agencies with overlapping regulatory responsibilities, and consistent procedures and methods for using wetland bank "credits" as compensatory mitigation for wetlands impacts are needed. This will provide greater certainty to project applicants and timely decisions on permit applications. Compensatory mitigation achieved through participation in larger wetlands creation and restoration areas as part of mitigation "banks" generally provide greater assurance of long-term viability of the created or restored wetlands than smaller projects required as mitigation for an individual development project. Public entities, because of their increased accountability, permanent nature, and long-range planning abilities, are particularly likely to successfully use compensatory mitigation to benefit overall wetlands values while planning for necessary public facilities.

For these reasons it is the purpose of this chapter to provide an optional procedure for governmental entities operating a wetland mitigation bank or proposing to do so, by which the entity may request the development of an interagency agreement among wetland regulatory agencies. The agreement would provide coordinated procedures and methods for use of such a wetland mitigation bank in regulatory review of public projects by the regulatory agencies entering the interagency agreement.

NEW SECTION. Sec. 2. INTERAGENCY AGREEMENTS. (1) Beginning January 1, 1996, at the request of a governmental entity operating or proposing to operate a wetland compensatory mitigation bank, the department of ecology shall initiate discussions for the purpose of developing an interagency agreement among regulatory agencies consistent with this chapter.

(2) Prior to initiating discussions under subsection (1) of this section, the entity shall demonstrate that the bank or proposed bank meets the following minimum criteria:

(a) The wetland area included or proposed to be included in the bank has been or will be artificially created, or is or will be the restoration of degraded wetlands, and the biological and hydrological function of the wetlands are or will be typical of natural wetlands of that type;

(b) There is at least a twenty-year plan for the care and maintenance of the area to ensure its long-term viability, including provision for financing necessary repairs or restoration;

(c) The wetland area is or will be dedicated to wetland conservation purposes in perpetuity by binding limitations on the title to the real property; and

(d) Provision has been made for monitoring the wetland area's functional performance and for periodically reporting this information to the department of ecology.

(3) Upon receiving the request the department of ecology shall initiate discussions with the following government agencies, with the objective of entering an interagency agreement for review of project proposals that include proposals to use the bank as wetlands compensatory mitigation:

(a) The general purpose local government within which the bank area lies;

(b) Other general purpose local governments with jurisdiction over areas within seventy-five miles of the bank area that contain substantial wetland areas for which compensatory mitigation in future projects by public agencies may be proposed;

(d) The appropriate regional offices of federal agencies with wetland regulatory jurisdiction, including at a minimum the United States environmental protection agency and the United States army corps of engineers.

(4) The department of ecology and other agencies involved in the discussions should address the following in the interagency agreement:

(a) Methods for uniformly measuring the credits and debits to wetland bank areas as part of a project's compensatory mitigation, including how and when such credits and debits are created;

(b) Methods for consistent delineation of wetland boundaries and measurement of wetland functional values, provided that no agency shall develop or implement a wetland program that uses a delineation process which is more stringent than that adopted by the United States army corps of engineers;

(c) Uniform guidelines for acreage ratios and other methods to compensate for the uncertainty of long-term success in the artificial creation and restoration of wetlands;

(d) Guidelines for required proximity of the bank area to serve as compensatory mitigation to the project site where wetlands impacts will occur; and

(e) Procedures to achieve integrated review by multiple regulatory agencies of projects proposing the use of bank credits as compensatory mitigation.

(5) The state agencies and local governments included in the discussions shall use their best efforts to enter an interagency agreement within one year of the initiation of discussions. The department of ecology shall solicit the participation of appropriate federal agencies with wetland regulatory jurisdiction.

(6) The agreement shall not limit a project applicant's choice of compensatory mitigation alternatives to the use of a bank addressed in the agreement.

NEW SECTION. Sec. 3. NOT AFFECT EXISTING BANKS. Nothing in this chapter shall affect wetland mitigation banks in existence on the effective date of this act or affect any project approved and satisfying compensatory mitigation requirements through the use of such a bank. The wetlands mitigation bank created by the Washington department of transportation through interagency memorandum of agreement dated September 15, 1994, is declared a recognized interagency agreement under section 2 of this act.

NEW SECTION. Sec. 4. PROGRESS REPORT. The department of ecology shall provide a report to the appropriate standing committees of the legislature by December 1st of each even-numbered year that includes:

(1) A description of publicly operated wetland banks for which an interagency agreement under section 2 of this act was requested;

(2) A description of other mitigation banks in operation within the state;

(3) A description of the interagency agreements entered under section 3 of this act;

(4) A description of the projects for which wetland bank credits were used for compensatory purposes, including a description of the wetland impacts for which compensation was required; and

(5) Recommendations for administrative, budgetary, and legislative changes necessary to make the wetland bank provisions of this chapter operate more effectively, and recommendations to expand this pilot program to compensatory mitigation banks that are privately owned or operated.

NEW SECTION. Sec. 5. CODIFICATION DIRECTION. Sections 1 through 4 of this act shall constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 6. CAPTIONS NOT LAW. Captions as used in this act constitute no part of the law.