2496-S

2496-S.E AMS SWEC S5497.1

ESHB 2496 - S AMD - 926

By Senators Swecker, Jacobsen and Spanel

ADOPTED 3/6/98

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. FINDINGS. The legislature finds that repeated attempts to improve salmonid fish runs throughout the state of Washington have failed to avert listings of salmon and steelhead runs as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.). These listings threaten the sport, commercial, and tribal fishing industries as well as the economic well-being and vitality of vast areas of the state. It is the intent of the legislature to begin activities required for the recovery of salmon stocks as soon as possible, although the legislature understands that successful recovery efforts may not be realized for many years because of the life cycle of salmon and the complex array of natural and human-caused problems they face.

The legislature finds that it is in the interest of the citizens of the state of Washington for the state to retain primary responsibility for managing the natural resources of the state, rather than abdicate those responsibilities to the federal government. The legislature also finds that there is a substantial link between the provisions of the federal endangered species act and the federal clean water act (33 U.S.C. Sec. 1251 et seq.). The legislature further finds that habitat restoration is a vital component of salmon recovery efforts. Therefore, it is the intent of the legislature to specifically address salmon habitat restoration in a coordinated manner and to develop a structure that allows for the coordinated delivery of federal, state, and local assistance to communities for habitat projects that will assist in the recovery and enhancement of salmon stocks.

The legislature also finds that credible scientific review and oversight is essential for any salmon recovery effort to be successful.

The legislature therefore finds that a coordinated framework for responding to the salmon crisis is needed immediately. To that end, the salmon recovery office should be created within the governor's office to provide overall coordination of the state's response; an independent science team is needed to provide scientific review and oversight; the appropriate local or tribal government should provide local leadership in identifying and sequencing habitat restoration projects to be funded by state agencies; habitat restoration projects should be implemented without delay; and a strong locally based effort to restore salmon habitat should be established by providing a framework to allow citizen volunteers to work effectively.

NEW SECTION. Sec. 2. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Adaptive management" means reliance on scientific methods to test the results of actions taken so that the management and related policy can be changed promptly and appropriately.

(2) "Critical pathways methodology" means a project scheduling and management process for examining interactions between habitat projects and salmonid species, prioritizing habitat projects, and assuring positive benefits from habitat projects.

(3) "Habitat project list" is the list of projects resulting from the critical pathways methodology under section 8(2) of this act. Each project on the list must have a written agreement from the landowner on whose land the project will be implemented. Projects include habitat restoration projects, habitat protection projects, habitat projects that improve water quality, habitat projects that protect water quality, habitat-related mitigation projects, and habitat project maintenance and monitoring activities.

(4) "Habitat work schedule" means those projects from the habitat project list that will be implemented during the current funding cycle. The schedule shall also include a list of the entities and individuals implementing projects, the start date, duration, estimated date of completion, estimated cost, and funding sources for the projects.

(5) "Limiting factors" means conditions that limit the ability of habitat to fully sustain populations of salmon. These factors are primarily fish passage barriers and degraded estuarine areas, riparian corridors, stream channels, and wetlands.

(6) "Project sponsor" is a county, city, special district, tribal government, a combination of such governments through interlocal agreements provided under chapter 39.34 RCW, a nonprofit organization, or one or more private citizens.

(7) "Salmon" includes all species of the family Salmonidae which are capable of self-sustaining, natural production.

(8) "Salmon recovery plan" means a state plan developed in response to a proposed or actual listing under the federal endangered species act that addresses limiting factors including, but not limited to harvest, hatchery, hydropower, habitat, and other factors of decline.

(9) "Tribe" or "tribes" means federally recognized Indian tribes.

(10) "WRIA" means a water resource inventory area established in chapter 173-500 WAC as it existed on January 1, 1997.

NEW SECTION. Sec. 3. IMPLEMENTATION--SUMMARY--RECOMMENDATIONS. By December 31, 1998, the governor shall submit a summary of the implementation of this act to the legislature, and include recommendations to the legislature that would further the success of salmon recovery. The recommendations may include:

(1) The need to expand or improve nonregulatory programs and activities;

(2) The need to expand or improve state and local laws and regulations; and

(3) The feasibility of forming a state-wide or regional community foundation or any other funding alternatives to assist in financing salmon recovery efforts.

NEW SECTION. Sec. 4. STATE OF THE SALMON REPORT. Beginning in December 2000, the governor shall submit a biennial state of the salmon report to the legislature during the first week of December. The report may include the following:

(1) A description of the amount of in-kind and financial contributions, including volunteer, private, and state, federal, tribal as available, and local government money directly spent on salmon recovery in response to actual, proposed, or expected endangered species act listings;

(2) A summary of habitat projects including but not limited to:

(a) A summary of accomplishments in removing barriers to salmon passage and an identification of existing barriers;

(b) A summary of salmon restoration efforts undertaken in the past two years;

(d) A summary of efforts taken to protect salmon habitat;

(3) A summary of collaborative efforts undertaken with adjoining states or Canada;

(4) A summary of harvest and hatchery management activities affecting salmon recovery;

(5) A summary of information regarding impediments to successful salmon recovery efforts;

(6) A summary of the number and types of violations of existing laws pertaining to: (a) Water quality; and (b) salmon. The summary shall include information about the types of sanctions imposed for these violations;

(7) Information on the estimated carrying capacity of new habitat created pursuant to chapter . . ., Laws of 1998 (this act); and

(8) Recommendations to the legislature that would further the success of salmon recovery. The recommendations may include:

(a) The need to expand or improve nonregulatory programs and activities; and

(b) The need to expand or improve state and local laws and regulations.

NEW SECTION. Sec. 5. GOVERNOR'S SALMON RECOVERY OFFICE. (1) The salmon recovery office is created within the office of the governor to coordinate state strategy to allow for salmon recovery to healthy sustainable population levels with productive commercial and recreational fisheries. The primary purpose of the office is to coordinate and assist in the development of salmon recovery plans for evolutionarily significant units, and submit those plans to the appropriate tribal governments and federal agencies in response to the federal endangered species act. The governor's salmon recovery office may also:

(a) Act as liaison to local governments, the state congressional delegation, the United States congress, federally recognized tribes, and the federal executive branch agencies for issues related to the state's endangered species act salmon recovery plans; and

(b) Provide the biennial state of the salmon report to the legislature pursuant to section 4 of this act.

(2) This section expires June 30, 2006.

NEW SECTION. Sec. 6. SCIENCE PANEL. (1) The governor shall request the national academy of sciences, the American fisheries society, or a comparable institution to screen candidates to serve as members on the independent science panel. The institution that conducts the screening of the candidates shall submit a list of the nine most qualified candidates to the governor, the speaker of the house of representatives, and the majority leader of the senate. The candidates shall reflect expertise in habitat requirements of salmon, protection and restoration of salmon populations, artificial propagation of salmon, hydrology, or geomorphology.

(2) The speaker of the house of representatives and the majority leader in the senate shall each remove one name from the nomination list. The governor shall consult with tribal representatives and the governor shall appoint five scientists from the remaining names on the nomination list.

(3) The members of the independent science panel shall serve four-year terms. The independent science panel members shall elect the chair of the panel among themselves every two years. The members of the independent science panel shall be compensated as provided in RCW 43.03.250 and reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

(4) The independent science panel shall be governed by generally accepted guidelines and practices governing the activities of independent science boards such as the national academy of sciences. The purpose of the independent science panel is to help ensure that sound science is used in salmon recovery efforts. The governor's salmon recovery office shall request review of salmon recovery plans by the science review panel. The science review panel does not have the authority to review individual projects or project lists developed under sections 7, 8, and 9 of this act or to make policy decisions.

(5) The independent science panel shall submit its findings to the legislature and the governor.

NEW SECTION. Sec. 7. HABITAT RESTORATION PROJECT LISTS. (1)(a) Counties, cities, and tribal governments must jointly designate, by official resolution, the area for which a habitat restoration project list is to be developed and the lead entity that is to be responsible for submitting the habitat restoration project list. No project included on a habitat restoration project list shall be considered mandatory in nature and no private landowner may be forced or coerced into participation in any respect. The lead entity may be a county, city, conservation district, special district, tribal government, or other entity.

(b) The lead entity shall establish a committee that consists of representative interests of counties, cities, conservation districts, tribes, environmental groups, business interests, landowners, citizens, volunteer groups, regional fish enhancement groups, and other restoration interests. The purpose of the committee is to provide a citizen-based evaluation of the projects proposed to promote salmon habitat restoration. The interagency review team may provide the lead entity with organizational models that may be used in establishing the committees.

(c) The committee shall compile a list of habitat restoration projects, establish priorities for individual projects, define the sequence for project implementation, and submit these activities as the habitat restoration project list. The committee shall also identify potential federal, state, local, and private funding sources.

(2) The area covered by the habitat project list must be based, at a minimum, on a WRIA, combination of WRIAs, an evolutionarily significant unit, or any other area as agreed to by the counties, cities, and tribes meeting the requirements of this subsection. Preference will be given to projects in an area that contain a salmon species that is listed or proposed for listing under the federal endangered species act.

NEW SECTION. Sec. 8. CRITICAL PATHWAYS METHODOLOGY. (1) Critical pathways methodology shall be used to develop a habitat project list and a habitat work schedule that ensures salmon restoration activities will be prioritized and implemented in a logical sequential manner that produces habitat capable of sustaining healthy populations of salmon.

(2) The critical pathways methodology shall:

(a) Include a limiting factors analysis for salmon in streams, rivers, tributaries, estuaries, and subbasins in the region. The technical advisory group shall have responsibility for the limiting factors analysis;

(b) Identify local habitat projects that sponsors are willing to undertake. The projects identified must have a written agreement from the landowner on which the project is to be implemented. Project sponsors shall have the lead responsibility for this task;

(c) Identify how projects will be monitored and evaluated. The project sponsor, in consultation with the technical advisory group and the appropriate landowner, shall have responsibility for this task; and

(d) Describe the adaptive management strategy that will be used. The committee established under section 7 of this act shall have responsibility for this task. If a committee has not been formed, the technical advisory group shall have the responsibility for this task.

(3) The habitat work list shall include all projects developed pursuant to subsection (2) of this section as well as any other salmon habitat restoration project implemented in the region. The work list shall also include the start date, duration, estimated date of completion, estimated cost, and, if appropriate, the affected salmonid species of each project. Each schedule shall be updated on an annual basis to depict new activities.

NEW SECTION. Sec. 9. INTERAGENCY REVIEW TEAM PROJECT FUNDING. (1) Representatives from the conservation commission, the department of transportation, and the department of fish and wildlife shall establish an interagency review team. Except as provided in subsection (6) of this section, habitat restoration project lists shall be submitted to the interagency review team by January 1st and July 1st of each year beginning in 1999.

(2) If no lead entity has been formed under section 7 of this act, the interagency review team shall rank, prioritize, and dispense funds for habitat restoration projects by giving preference to the projects that:

(a) Provide a greater benefit to salmon recovery;

(b) Will be implemented in a more critical area;

(d) Have the greatest matched, or in-kind funding; and

(e) Will be implemented by a sponsor with a successful record of project implementation.

(3) If a lead entity established under section 7 of this act has been formed, the interagency review team shall evaluate project lists and may remove, but not add, projects from a habitat project list.

(4) The interagency review team shall provide a summary of funding for habitat restoration project lists to the governor and to the legislature by December 1st of each year.

(5) The interagency review team may annually establish a maximum amount of funding available for any individual project, subject to available funding. The interagency review team shall attempt to assure a geographical balance in assigning priorities to projects.

(6) For fiscal year 1998, the department of fish and wildlife, the conservation commission, and the department of transportation may authorize, subject to appropriations, expenditures for projects that have been developed to restore salmon habitat before completion of the project lists required in section 7(2) of this act.

(7) Where a lead entity has been established pursuant to section 7 of this act, the interagency review team may provide block grants to the lead entity, subject to available funding.

NEW SECTION. Sec. 10. TECHNICAL ADVISORY GROUPS. (1) The conservation commission, in consultation with local government and the tribes, shall invite private, federal, state, tribal, and local government personnel with appropriate expertise to act as a technical advisory group.

(2) For state personnel, involvement on the technical advisory group shall be at the discretion of the particular agency. Unless specifically provided for in the budget, technical assistance participants shall be provided from existing full-time equivalent employees.

(3) The technical advisory group shall identify the limiting factors for salmonids to respond to the limiting factors relating to habitat pursuant to section 8(2) of this act.

(4) Where appropriate, the conservation district within the area implementing this chapter shall take the lead in developing and maintaining relationships between the technical advisory group and the private landowners under section 9 of this act. The conservation districts may assist landowners to organize around river, tributary, estuary, or subbasins of a watershed.

(5) Fishery enhancement groups and other volunteer organizations may participate in the activities under this section.

NEW SECTION. Sec. 11. THE SEA GRANT PROGRAM. The sea grant program at the University of Washington is authorized to provide technical assistance to volunteer groups and other project sponsors in designing and performing habitat restoration projects that address the limiting factors analysis of regional habitat work plans. The cost for such assistance may be covered on a fee-for-service basis.

NEW SECTION. Sec. 12. SOUTHWEST WASHINGTON SALMON RECOVERY. The southwest Washington salmon recovery region, whose boundaries are provided in chapter . . ., Laws of 1998 (Engrossed Second Substitute House Bill No. 2836), is created. If Engrossed Second Substitute House Bill No. 2836 is not enacted by July 1, 1998, this section is null and void.

Sec. 13. RCW 90.71.005 and 1996 c 138 s 1 are each amended to read as follows:

(1) The legislature finds that:

(a) Puget Sound and related inland marine waterways of Washington state represent a unique and unparalleled resource. A rich and varied range of marine organisms, comprising an interdependent, sensitive communal ecosystem reside in these sheltered waters. Residents of this region enjoy a way of life centered around the waters of Puget Sound, featuring accessible recreational opportunities, world-class port facilities and water transportation systems, harvest of marine food resources, shoreline-oriented life styles, water-dependent industries, tourism, irreplaceable aesthetics, and other activities, all of which to some degree depend upon a clean and healthy marine resource;

(b) The Puget Sound water quality authority has done an excellent job in developing a comprehensive plan to identify actions to restore and protect the biological health and diversity of Puget Sound;

(c) The large number of governmental entities that now have regulatory programs affecting the water quality of Puget Sound have diverse interests and limited jurisdictions that cannot adequately address the cumulative, wide-ranging impacts that contribute to the degradation of Puget Sound; and

(d) Coordination of the regulatory programs, at the state and local level, is best accomplished through the development of interagency mechanisms that allow these entities to transcend their diverse interests and limited jurisdictions.

(2) It is therefore the policy of the state of Washington to coordinate the activities of state and local agencies by establishing a biennial work plan that clearly delineates state and local actions necessary to protect and restore the biological health and diversity of Puget Sound. It is further the policy of the state to implement the Puget Sound water quality management plan to the maximum extent possible. To further the policy of the state, a recovery plan developed under the federal endangered species act for a portion or all of the Puget Sound shall be considered for inclusion into the Puget Sound water quality management plan.

Sec. 14. RCW 90.71.020 and 1996 c 138 s 3 are each amended to read as follows:

(1) The Puget Sound action team is created. The action team shall consist of: The directors of the departments of ecology; agriculture; natural resources; fish and wildlife; and community, trade, and economic development; the secretaries of the departments of health and transportation; the director of the parks and recreation commission; the director of the interagency committee for outdoor recreation; the administrative officer of the conservation commission designated in RCW 89.08.050; one person representing cities, appointed by the governor; one person representing counties, appointed by the governor; one person representing federally recognized tribes, appointed by the governor; and the chair of the action team. The action team shall also include the following ex officio nonvoting members: The regional director of the United States environmental protection agency; the regional administrator of the national marine fisheries service; and the regional supervisor of the United States fish and wildlife service. The members representing cities and counties shall each be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

(2) The action team shall:

(a) Prepare a Puget Sound work plan and budget for inclusion in the governor's biennial budget;

(b) Coordinate monitoring and research programs as provided in RCW 90.71.060;

(d) Coordinate permitting requirements as necessary to expedite permit issuance for any local watershed plan developed pursuant to rules adopted under this chapter;

(e) Identify and resolve any policy or rule conflicts that may exist between one or more agencies represented on the action team;

(f) Periodically amend the Puget Sound management plan;

(g) Enter into, amend, and terminate contracts with individuals, corporations, or research institutions for the purposes of this chapter;

(h) Receive such gifts, grants, and endowments, in trust or otherwise, for the use and benefit of the purposes of the action team. The action team may expend the same or any income therefrom according to the terms of the gifts, grants, or endowments;

(i) Promote extensive public participation, and otherwise seek to broadly disseminate information concerning Puget Sound;

(j) Receive and expend funding from other public agencies;

(k) To reduce costs and improve efficiency, review by December 1, 1996, all requirements for reports and documentation from state agencies and local governments specified in the plan for the purpose of eliminating and consolidating reporting requirements; and

(l) Beginning in December 1998, and every two years thereafter, submit a report to the appropriate policy and fiscal committees of the legislature that describes and evaluates the successes and shortcomings of the current work plan relative to the priority problems identified for each geographic area of Puget Sound.

(3) By July 1, 1996, the action team shall begin developing its initial work plan, which shall include the coordination of necessary support staff.

(4) The action team shall incorporate, to the maximum extent possible, the recommendations of the council regarding amendments to the Puget Sound ((~~[management]~~)) management plan and the work plan.

(5) All proceedings of the action team are subject to the open public meetings act under chapter 42.30 RCW.

Sec. 15. RCW 90.71.050 and 1996 c 138 s 6 are each amended to read as follows:

(1)(a) Each biennium, the action team shall prepare a Puget Sound work plan and budget for inclusion in the governor's biennial budget. The work plan shall prescribe the necessary federal, state, and local actions to maintain and enhance Puget Sound water quality, including but not limited to, enhancement of recreational opportunities, and restoration of a balanced population of indigenous shellfish, fish, and wildlife. The work plan and budget shall include specific actions and projects pertaining to salmon recovery plans.

(b) In developing a work plan, the action team shall meet the following objectives:

(i) Use the plan elements of the Puget Sound management plan to prioritize local and state actions necessary to restore and protect the biological health and diversity of Puget Sound;

(ii) Consider the problems and priorities identified in local plans; and

(iii) Coordinate the work plan activities with other relevant activities, including but not limited to, agencies' activities that have not been funded through the plan, local plans, and governmental and nongovernmental watershed restoration activities.

(i) The total funds to implement local projects originating from the planning process developed for nonpoint pollution; and

(ii) The total funds to implement any other projects designed primarily to restore salmon habitat.

(2) In addition to the requirements identified under RCW 90.71.020(2)(a), the work plan and budget shall:

(a) Identify and prioritize the local and state actions necessary to address the water quality problems in the following locations:

(i) Area 1: Island and San Juan counties;

(ii) Area 2: Skagit and Whatcom counties;

(iii) Area 3: Clallam and Jefferson counties;

(iv) Area 4: Snohomish, King, and Pierce counties; and

(v) Area 5: Kitsap, Mason, and Thurston counties;

(b) Provide sufficient funding to characterize local watersheds, provide technical assistance, and implement state responsibilities identified in the work plan. The number and qualifications of staff assigned to each region shall be determined by the types of problems identified pursuant to (a) of this subsection;

(c) Provide sufficient funding to implement and coordinate the Puget Sound ambient monitoring plan pursuant to RCW 90.71.060;

(d) Provide funds to assist local jurisdictions to implement elements of the work plan assigned to local governments and to develop and implement local plans;

(e) Provide sufficient funding to provide support staff for the action team; and

(f) Describe any proposed amendments to the Puget Sound ((~~[management]~~)) management plan.

(3) The work plan shall be submitted to the appropriate policy and fiscal committees of the legislature by December 20th of each even-numbered year.

(4) The work plan shall be implemented consistent with the legislative provisos of the biennial appropriation acts.

NEW SECTION. Sec. 16. WORK GROUP. (1) The departments of transportation, fish and wildlife, and ecology, and tribes shall convene a work group to develop policy guidance to evaluate mitigation alternatives. The policy guidance shall be designed to enable committees established under section 7 of this act to develop and implement habitat project lists that maximize environmental benefits from project mitigation while reducing project design and permitting costs. The work group shall seek technical assistance to ensure that federal, state, treaty right, and local environmental laws and ordinances are met. The purpose of this section is not to increase regulatory requirements or expand departmental authority.

(2) The work group shall develop guidance for determining alternative mitigation opportunities. Such guidance shall include criteria and procedures for identifying and evaluating mitigation opportunities within a watershed. Such guidance shall create procedures that provide alternative mitigation that has a low risk to the environment, yet has high net environmental, social, and economic benefits compared to status quo options.

(3) The evaluation shall include:

(a) All elements of mitigation, including but not limited to data requirements, decision making, state and tribal agency coordination, and permitting; and

(b) Criteria and procedures for identifying and evaluating mitigation opportunities, including but not limited to the criteria in chapter 90.74 RCW.

(4) Committees established under section 7 of this act shall coordinate voluntary collaborative efforts between habitat project proponents and mitigation project proponents. Mitigation funds may be used to implement projects identified by a work plan to mitigate for the impacts of a transportation or other development proposal or project.

(5) For the purposes of this section, "mitigation" has the same meaning as provided in RCW 90.74.010.

NEW SECTION. Sec. 17. Only those funds appropriated for the habitat restoration projects under this chapter are subject to the requirements of section 9 of this act.

NEW SECTION. Sec. 18. CAPTIONS NOT LAW. Captions used in this chapter are not any part of the law.

NEW SECTION. Sec. 19. Sections 1 through 12 and 16 through 18 of this act constitute a new chapter in Title 75 RCW."

ESHB 2496 - S AMD - 926

By Senators Swecker, Jacobsen and Spanel

ADOPTED 3/6/98

On page 1, line 1 of the title, after "planning;" strike the remainder of the title and insert "amending RCW 90.71.005, 90.71.020, and 90.71.050; adding a new chapter to Title 75 RCW; and providing an expiration date."