BP BHEAD INT S

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 the state's goal of no overall net loss of wetlands is maintained. The reform of wetland regulatory programs in part requires greater coordination of agencies with overlapping regulatory responsibilities, and a consistent procedure and methods for using wetland bank "credits" as compensatory mitigation for wetlands impacts, and will provide greater certainty to project applicants and timely decisions on permit applications. While compensatory mitigation is generally a lesser preferred alternative than wetlands avoidance or impact restoration or minimization, for many projects it may be the only available alternative. 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.

For these reasons it is the purpose of this chapter to facilitate the recognition by state and local wetland regulatory agencies of wetlands mitigation banks for compensatory mitigation purposes, and to encourage participation by federal agencies. Coordinated procedures and methods for use of wetland banks in regulatory review of projects is required of state and local agencies. However, the use of wetland banks for satisfying compensatory mitigation requirements is to remain entirely at the option of the project applicant, and nothing in this chapter requires the use of a wetland bank by any project applicant.

NEW SECTION. Sec. 2. RECOGNIZED WETLAND MITIGATION BANKS. (1) The director of the department of ecology may recognize a wetland mitigation bank upon the application of the owner of the bank area meeting the requirements of this section.

(2) To qualify as a recognized wetland mitigation bank, the applicant must demonstrate that:

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

(b) The wetland area has not been created or restored as compensatory mitigation for other wetland impacts;

(c) 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. The department shall review this plan and the assurances of long-term viability in light of the liability exclusion under section 5 of this act;

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

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

(3) The department shall prepare a standard application form and adopt criteria by which satisfaction of the requirements under subsection (2) of this section will be determined. Prior to the adoption of such criteria, the department shall consult with counties and cities, and with federal agencies with wetland regulatory jurisdiction, to ensure to the maximum extent that state, local, and federal requirements for the recognition of wetland mitigation banks are consistent.

(4) The recognition shall be renewed at least every two years upon the department's review of the bank owner's compliance with the criteria under subsection (2) of this section. The department may require that the owner submit additional information to conduct this review. The recognition may be withdrawn at any time the department determines the bank is not meeting the criteria, but only following notice to the owner and an opportunity to submit additional supporting information.

(5) The wetlands mitigation bank created by the Washington department of transportation through interagency memorandum of agreement dated September 15, 1994, is hereby declared a recognized wetland mitigation bank under this section.

NEW SECTION. Sec. 3. RECOGNITION BY REGULATORY AGENCIES. (1) By January 1, 1996, the department shall develop a model protocol for use by state and local wetland regulatory agencies in considering the use of wetland mitigation banks when considering compensatory mitigation alternatives in permit applications. The protocol shall include:

(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;

(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.

(2) Upon the recognition of a wetland mitigation bank, the department shall initiate discussions with the following government agencies and local governments, with the objective of entering an interagency agreement for review of 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 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.

(3) The state agencies and local governments included in the discussions shall use their best efforts to enter an interagency and interlocal agreement to establish uniform procedures for the consideration of wetland bank credits in project proposals including compensatory mitigation. A goal shall be established of completing an agreement among all participating agencies within twelve months after recognition of the wetland bank. The agreement need not be bank-specific but may address all wetland banks in existence within the area of the agreement. The agreement shall incorporate to the maximum extent the model protocol provisions developed under subsection (1) of this section. The department shall be the lead state and local agency in negotiating with appropriate federal agencies to seek their participation in the agreement. The department may modify or waive provisions of the protocol for the purpose of obtaining federal participation in the unified procedures under the agreement.

(4) The agreement shall not limit a project applicant's choice of compensatory mitigation alternatives to use of a recognized wetland mitigation bank. However, the agreement shall include provisions for expedited review of proposals for compensatory mitigation that would employ credits from a recognized bank.

NEW SECTION. Sec. 4. NOT AFFECT EXISTING BANKS. Nothing in this chapter shall affect wetland mitigation banks in existence on the date of this chapter or affect any project approved and satisfying compensatory mitigation requirements through the use of such a bank. However, any such bank owner may apply for recognition under section 2 of this act, and the department shall make available information to bank owners on the provisions of this chapter.

NEW SECTION. Sec. 5. PROJECT PROPONENT NOT LIABLE FOR RECOGNIZED WETLAND BANK OPERATION. A state agency or local government approving a project that impacts wetlands on the basis of obtaining compensatory mitigation from a wetland mitigation bank recognized under section 2 of this act shall not condition the approval on any liability of the project proponent for the future functioning or maintenance of the bank's wetland areas.

NEW SECTION. Sec. 6. PROGRESS REPORT. The department shall provide a report to the appropriate standing committees of the legislature by December 1 of each even-numbered year that includes:

(1) A description of wetland banks recognized under section 2 of this act and the functional condition of the wetland areas in the banks;

(2) A description of other 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.

NEW SECTION. Sec. 7. CODIFICATION DIRECTIONS. Sections 1 through 6 of this act shall constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 8. CAPTIONS NOT LAW. Captions as used in this act constitute no part of the law.