H-3689.2 _______________________________________________
HOUSE BILL 2339
_______________________________________________
State of Washington 55th Legislature 1998 Regular Session
By Representatives Thompson, Mulliken, Pennington, Gardner, Romero, Chopp, Anderson, Boldt and Lantz
Prefiled 1/7/98. Read first time 01/12/98. Referred to Committee on Government Reform & Land Use.
AN ACT Relating to wetlands mitigation banking; 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 wetlands mitigation banks are an important tool for providing compensatory mitigation for unavoidable impacts to wetlands. The legislature further finds that benefits of mitigation banks include: (1) Maintenance of the ecological functioning of a watershed by consolidating compensatory mitigation into a single large parcel rather than smaller individual parcels; (2) increased potential for establishment and long-term management of successful mitigation by bringing together financial resources, planning, and scientific expertise not practicable for many project-specific mitigation proposals; (3) increased certainty over the success of mitigation and reduction of temporal losses of wetlands since mitigation banks are typically implemented and functioning in advance of project impacts; (4) potential enhanced protection and preservation of the state's highest value and highest functioning wetlands; (5) a reduction in permit processing times and increased opportunity for more cost-effective compensatory mitigation for development projects; and (6) the ability to provide compensatory mitigation in an efficient, predictable, and economically and environmentally responsible manner.
The purpose of this chapter is to support the establishment of mitigation banks by providing a predictable, efficient, regulatory framework, including timely review of mitigation bank proposals.
NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Credit" means a unit of trade representing the increase in the ecological value of the wetland, as measured by acreage, functions, and/or values.
(2) "Department" means the department of ecology.
(3) "Wetlands mitigation bank" or "bank" means a site where wetlands are restored, created, enhanced, or in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources.
(4) "Mitigation" means sequentially avoiding impacts, minimizing impacts, and compensating for remaining unavoidable impacts.
(5) "Practicable" means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.
(6) "Service area" means the designated geographic area in which the department determines a bank can reasonably be expected to provide appropriate compensation for unavoidable impacts to wetlands.
(7) "Unavoidable" means adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.
(8) "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 section.
NEW SECTION. Sec. 3. (1) Subject to the requirements of this chapter, the department, in consultation with state and federal agencies, shall adopt rules:
(a) For the certification, operation, and monitoring of mitigation banks;
(b) For the determination and release of credits from banks;
(c) For public involvement in the certification of banks;
(d) To ensure coordination with governmental agencies; and
(e) To otherwise carry out the provisions of this chapter.
(2) The department may certify only those banks that meet the requirements of this chapter.
(3) State agencies may approve use of a bank for any compensatory mitigation of a wetland impact required under a permit issued or approved by the agency.
(4) The department shall authorize use of a particular mitigation bank on a project-specific basis and shall determine the number and availability of credits to compensate for the proposed impacts of a specific project.
(5) The department shall assure that for any bank certified, adequate provisions are made for long-term management, monitoring, financial assurances, and rededication.
(6) This chapter applies to public and private mitigation banks.
NEW SECTION. Sec. 4. The department may approve use of a bank when there is no practicable opportunity for on-site compensation, or when use of a bank is environmentally preferable to on-site compensation. The department must assure that all appropriate and practicable steps have been undertaken to first avoid and then minimize adverse impacts to wetlands, before approving use of a mitigation bank as a means of mitigation.
NEW SECTION. Sec. 5. The department shall give priority to mitigation banks providing for restoration of degraded or former wetlands, and shall adopt rules to assure that banks involving creation and enhancement of wetlands are certified only where there are adequate assurances of success and that the bank will result in an overall environmental benefit. The department may certify banks involving the preservation of wetlands or associated uplands when the preservation is in conjunction with restoration, enhancement, or creation of a wetland or in other exceptional circumstances as determined by the department consistent with the purposes of this chapter.
NEW SECTION. Sec. 6. The department shall establish the number of credits and schedule of release of credits for each certified bank. Credit shall be based on the acreage and wetland type of the bank, or by use of a specific assessment method adopted by the department. A credit that has been released may be sold or used to offset adverse impacts under a permit issued or approved by the department. The department may allow a portion of the credits to be released before all of the performance criteria have been met.
NEW SECTION. Sec. 7. The department shall establish a service area for each bank. The service area shall be the same watershed as the mitigation bank unless the department determines that it is practicable and environmentally desirable to exceed this limitation or necessary to restrict the service area to a smaller size to replace certain functions. The department may designate more inclusive service areas for banks whose primary purpose is to compensate for linear projects that typically involve numerous small impacts in several different watersheds.
NEW SECTION. Sec. 8. Rules adopted under this chapter must be consistent with applicable federal guidance for the establishment, use, and operation of wetlands mitigation banks as it existed on the effective date of this section, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this chapter.
NEW SECTION. Sec. 9. The requirements of this chapter shall not affect the use or sale of credits from any bank that is operating on the effective date of this section.
NEW SECTION. Sec. 10. 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. 11. Sections 1 through 10 of this act constitute a new chapter in Title 90 RCW.
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