BP BHEAD INT H [Atlas:Generic]

AN ACT Relating to compensatory mitigation; and adding a new chapter to Title 90 RCW.

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

NEW SECTION. Sec. 1. The legislature finds that the state lacks a central policy relating to the mitigation of habitat for necessary or unavoidable development. This causes development proposals that rely upon advanced compensatory mitigation or off-site mitigation to take an unreasonably long period of time to develop and implement and to be subject to a great deal of regulatory and permitting uncertainty.

The legislature further finds that mitigation for wetlands and aquatic habitats can be most beneficial for the resource if it is planned before the project's environmental impacts. Advanced compensatory mitigation and off-site mitigation are approaches to providing habitat compensation that offer benefits for natural resources while reducing permitting delays and uncertainty. These resource benefits result from early implementation of habitat improvement actions and from increased flexibility to address habitat from a landscape, watershed, or bay-wide perspective. This approach also offers opportunities to increase biological functions by combining or connecting habitats into blocks of larger size or complexity.

The purpose of this chapter is to encourage, as an option, advanced compensatory mitigation and off-site mitigation where it is deemed appropriate and beneficial for resources, and for accommodating necessary or unavoidable development in sensitive habitat areas. Public infrastructure projects, in particular, could benefit from this type of option.

This chapter does not require the project proponent to use advanced compensatory mitigation or off-site mitigation or changes a project proponent's opportunity to pursue project-specific mitigation proposals outside of the context of a development plan.

The legislature encourages local governments to accommodate the goals of sections 1 through 3 of this act. It is the intent of the legislature that each mitigation plan be consistent with plans adopted under the growth management act, chapter 36.70A RCW, and the shoreline management act, chapter 90.58 RCW, and local governments are encouraged to incorporate the goals of this chapter into their development regulations and critical area ordinances.

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

(1) "Advanced compensatory mitigation" means providing compensatory mitigation in advance of known, unavoidable impacts of planned development projects described in a development plan.

(2) "Compensatory mitigation" means the restoration, creation, enhancement, or, in exceptional circumstances, preservation of uplands, wetlands, or other aquatic resources for the purposes of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.

(3) "Development plan" means a plan developed through joint discussions between a project proponent and environmental regulatory agencies that leads to a document or set of documents that describes a plan of development and the mitigation that accompanies the plan.

(4) "Mitigation" means sequentially avoiding impacts, minimizing impacts, and compensating for remaining unavoidable impacts.

(5) "Mitigation plan" means an element of a development plan that describes the unavoidable wetland or aquatic resource impacts of the proposed development, and the proposed compensatory mitigation for those impacts. It may include a memorandum of agreement with an agency or agencies.

(6) "Plan proponent" means a public or private entity responsible for preparing a development plan.

(7) "Watershed" means an area identified as a state of Washington water resource inventory area under WAC 173-500-040 as it exists on the effective date of this act.

NEW SECTION. Sec. 3. In order to implement a development plan, plan proponents may propose habitat mitigation in areas away from the proposed development and may propose advanced compensatory mitigation and off-site mitigation. The departments of ecology and fish and wildlife shall consider proposals that improve the overall habitat value of the watershed and accommodate the habitat mitigation needs of unavoidable or necessary development.

In making regulatory decisions relating to mitigation plans, the departments of ecology and fish and wildlife may not limit the scope of options proposed by the project proponent to areas on or near the project site, or to habitat types of the same type as contained on the project site. The departments of ecology and fish and wildlife shall fully review and give due consideration to compensatory mitigation proposals, including advanced compensatory mitigation proposals or off-site mitigation proposals, that improve or protect overall habitat within the watershed or bay, and provide equal or better resource functions than those that will be lost as a result of the development plan. The departments of ecology and fish and wildlife are not required to grant approval to a mitigation proposal that the departments find does not provide equal or better resource value within the watershed or bay.

A mitigation plan must contain provisions that guarantee the long-term viability of the created, restored, or enhanced habitat, including assurances for protecting essential biological and hydrological functions as defined in the mitigation plan. The mitigation plan may include provisions for long-term monitoring of the mitigation site.

A development plan must be consistent with the local comprehensive land use plan in counties planning under chapter 36.70A RCW, and must be consistent with any applicable planning process in effect for the development area.

NEW SECTION. Sec. 4. The legislature recognizes that many of the aquatic areas of the state contain levels of pollution in the sediments that require remediation through state and federal cleanup laws and programs such as the state model toxics control act, chapter 70.105D RCW, or the federal comprehensive environmental response, compensation and liability act (42 U.S.C. Sec. 9601 et seq.). When cleanup actions are undertaken in aquatic areas, the habitat function of the aquatic area is substantially improved. For this reason it is the policy of the state to not require habitat mitigation for sediment dredging or capping actions that result in a cleaner aquatic environment.

NEW SECTION. Sec. 5. (1) In making regulatory decisions relating to habitat mitigation, the department of ecology shall follow the general policies of sections 1 through 4 of this act.

(2) If the department of ecology receives multiple requests for review of mitigation plans, the department may schedule its review of these proposals to conform to available budgetary resources. In order to expedite this process if staffing resources are unavailable, the department may develop an agreement that allows the project proponent to fund a position or partial position within the department to review the proposal.

(3) A person may appeal a department of ecology decision under this chapter to the hydraulic appeals board.

NEW SECTION. Sec. 6. (1) In making regulatory decisions relating to habitat mitigation, the department of fish and wildlife shall follow the general policies of sections 1 through 4 of this act.

(2) If the department of fish and wildlife receives multiple requests for review of mitigation plans, the department may schedule its review of these proposals to conform to available budgetary resources. In order to expedite the review process if staffing resources are unavailable, the department may develop an agreement that allows the project proponent to fund a position or partial position within the department to review the proposal.

(3) A person may appeal a department of fish and wildlife decision under this chapter to the hydraulic appeals board.

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