BP BHEAD INT S [atlas:bill]

AN ACT Relating to dairy nutrients management; amending RCW 90.64.005, 90.64.010, 90.64.030, 90.64.050, 90.64.060, 90.64.070, 90.64.080, 90.48.144, and 90.48.465; adding new sections to chapter 90.64 RCW; repealing RCW 90.64.090; and prescribing penalties.

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

Sec. 1. RCW 90.64.005 and 1993 c 221 s 1 are each amended to read as follows:

The legislature finds that there is a need to establish a clear and understandable process that provides for the proper and effective management of dairy ((~~waste~~)) nutrients that affects the quality of surface or ground waters in the state of Washington. The legislature finds that there is a need for a program that will provide a stable and predictable business climate upon which dairy farms may base future investment decisions.

The legislature finds that federal regulations require a permit program for dairies ((~~[with]~~)) with over seven hundred head of mature cows and, other specified dairy farms that directly discharge into waters or are otherwise significant contributors of pollution. The legislature finds that significant work has been ongoing over a period of time and that the intent of this chapter is to take the consensus that has been developed and place it into statutory form.

It is also the intent of this chapter to establish an inspection and technical assistance program for dairy farms to address the discharge of pollutants to surface and ground waters of the state that will lead to water quality compliance by the industry. A further purpose is to create a balanced program involving technical assistance, regulation, and enforcement with coordination and oversight of the program by a committee composed of industry, agency, and other representatives. Furthermore, it is the objective of this chapter to maintain the administration of the water quality program as it relates to dairy operations at the state level.

It is also the intent of this chapter to recognize the existing working relationships between conservation districts, the conservation commission, and the department of ecology in protecting water quality of the state. A further purpose of this chapter is to provide statutory recognition of the coordination of the functions of conservation districts, the conservation commission, and the department of ecology pertaining to development of dairy waste management plans for the protection of water quality.

Sec. 2. RCW 90.64.010 and 1993 c 221 s 2 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Advisory and oversight committee" means a balanced committee of agency, dairy farm, and interest group representatives convened to provide oversight and direction to the dairy nutrients management program.

(2) "Catastrophic" means a tornado, hurricane, earthquake, or other extreme condition that would cause an overflow from a required waste retention structure.

(3) "Chronic" means a series of wet weather events that precludes dewatering of a waste retention structure that is designed and constructed with adequate volume for the current herd size and is also properly maintained.

(4) "Conservation commission" or "commission" means the conservation commission under chapter 89.08 RCW.

((~~(2)~~)) (5) "Conservation districts" or "district" means a subdivision of state government organized under chapter 89.08 RCW.

(((3) "Concentrated dairy animal feeding operation" means a dairy animal feeding operation subject to regulation under this chapter which the director designates under RCW 90.64.030 or meets the following criteria:

~~(a) Has more than seven hundred mature dairy cows, whether milked or dry cows, that are confined; or~~

~~(b) Has more than two hundred head of mature dairy cattle, whether milked or dry cows, that are confined and either:~~

~~(i) From which pollutants are discharged into navigable waters through a manmade ditch, flushing system, or other similar manmade device; or~~

(ii) From which pollutants are discharged directly into surface or ground waters of the state that originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

~~(4) "Dairy animal feeding operation" means a lot or facility where the following conditions are met:~~

~~(a) Dairy animals that have been, are, or will be stabled or confined and fed for a total of forty-five days or more in any twelve-month period; and~~

(b) Crops, vegetation forage growth, or postharvest residues are not sustained in the normal growing season over any portion of the lot or facility. Two or more dairy animal feeding operations under common ownership are considered, for the purposes of this chapter, to be a single dairy animal feeding operation if they adjoin each other or if they use a common area for land application of wastes.

~~(5)~~)) (6) "Dairy farm" means any farm that is licensed to produce milk under chapter 15.36 RCW.

(7) "Dairy nutrients management inspection team" means one or more representatives of the department and a local conservation district organized to inspect dairy farms in the state for compliance with the provisions of this chapter.

(8) "Dairy nutrients management plan" means a plan meeting the requirements established under section 5 of this act.

(9) "Dairy nutrients management technical assistance team" means one or more professional engineers and local conservation district employees convened to serve one of up to four distinct geographic areas in the state.

(10) "Dairy producer" means a person who owns or operates a dairy farm.

(11) "Department" means the department of ecology under chapter 43.21A RCW.

((~~(6)~~)) (12) "Director" means the director of the department of ecology, or his or her designee.

(13) "Major violation" means a discharge into the waters of the state, except those caused by a twenty-four hour, twenty-five year or greater, flood event, or by catastrophic or chronic weather events, and that is not regulated under a national pollutant discharge elimination system permit.

NEW SECTION. Sec. 3. (1) Every dairy producer licensed under chapter 15.36 RCW shall register with the department by September 1, 1998.

(2) Every dairy producer licensed after September 1, 1998, shall register with the department within sixty days of licensing. Dairy producers shall reregister with the department within sixty days of changing ownership, changing address, or increasing herd sizes last registered by twenty percent or more.

(3) To facilitate registration, the department shall obtain from the food safety and animal health division of the department of agriculture a current list of all licensed dairy producers in the state and mail a registration form to each licensed dairy producer no later than July 15, 1998.

(4) The form shall require the following information:

(a) The name and address of the operator of the dairy farm;

(b) The name and address of the dairy farm;

(d) The number of cows in the dairy farm;

(e) The number of young stock in the dairy farm;

(f) The number of acres owned and rented in the dairy farm; and

(g) Whether the dairy producer is developing and/or using a dairy nutrients management plan pursuant to the requirements of this chapter.

(5) The department's failure to reach a dairy producer by mail shall not alter the obligation of the producer to register with the department within the time required.

NEW SECTION. Sec. 4. (1) By October 1, 1998, the dairy nutrients management inspection teams shall initiate an inspection program of all dairy farms in the state. The purpose of the inspections is to identify corrective actions for actual or imminent discharges that threaten to violate the state's water quality standards, to survey for evidence of significant dairy nutrient discharges, to identify producers who do not have an approved dairy nutrients management plan or are not implementing a previously approved dairy nutrients management plan, and to identify dairy producers who would benefit from technical assistance programs. The dairy nutrients management inspection teams shall conduct such additional inspections as are necessary to ensure compliance with state and federal water quality requirements, provided that all licensed dairy farms shall be inspected within one year of the start of this program.

(2) The dairy nutrients management inspection teams shall begin a new round of inspections two years after the completion of the initial inspections, and every two years thereafter.

NEW SECTION. Sec. 5. (1) All dairy producers licensed under chapter 15.36 RCW shall prepare a dairy nutrients management plan. Such plans shall be prepared and fully implemented by January 1, 2001.

(2) By December 31, 1998, the commission in conjunction with the advisory and oversight committee established in section 7 of this act shall develop a document clearly describing the elements that a dairy nutrients management plan must contain to gain local conservation district approval.

(3) In preparing a dairy nutrients management plan, a dairy producer shall use the standards and specifications developed by the federal natural resource and conservation service, developed under section 9 of this act, or those approved under section 7(3) of this act.

(4) A dairy nutrients management plan for a dairy farm required under this chapter is not subject to public disclosure and is exempt from public inspection and copying.

NEW SECTION. Sec. 6. A dairy producer is in compliance with the provisions of this chapter if he or she has not caused a major violation, and has in effect a dairy nutrients management plan, or is in the process of completing and implementing such a plan as provided within this chapter.

NEW SECTION. Sec. 7. (1) A dairy nutrients management program advisory and oversight committee is established. The committee shall be chaired by the executive secretary of the conservation commission. The purpose of the committee is to provide direction to and oversight of the dairy nutrients management inspection program, as well as to encourage the use of appropriate alternative technologies and methods for managing dairy nutrients. Members shall be appointed by the commission.

(2) The committee shall include representatives of the department, the dairy industry, the conservation commission, conservation districts, an environmental organization, and the shellfish industry. In addition, the federal natural resources conservation service and the federal environmental protection agency shall each be invited to appoint a representative to the committee.

(3) The committee shall perform the following functions:

(a) Meet at least four times per calendar year;

(b) Maintain meeting minutes and account for the resolution of issues jointly identified by the committee chairs as needing to be addressed;

(d) Act as a forum to hear suggestions from any interested parties, including dairy farmers, regarding implementation of the dairy nutrients management program;

(e) Monitor the development and use of the standards and specifications developed under section 9 of this act;

(f) Create and recommend standardized dairy farm nutrients management facility inspection procedures and a reporting format to be used by the department;

(g) Develop performance-based criteria to determine the frequency of inspections initiated under section 4 of this act; and

(h) Approve the use of dairy nutrients management technologies and methods other than those approved or provided by the natural resource and conservation service, as components of nutrients management plans under this chapter, provided the resulting performance standards meet or exceed those developed by the technical assistance teams established in section 9 of this act.

(4) The advisory and oversight committee does not replace or infringe upon the authority, duties, or responsibilities of the pollution control hearings board.

NEW SECTION. Sec. 8. By December 31, 1998, the department in consultation with the advisory and oversight committee shall develop and maintain a data base to account for the implementation of the inspection program identified in section 4 of this act. The data base shall track registration, inspection, regulatory and enforcement actions, and status of dairy nutrients management plans. A summary of the data base information shall be provided quarterly to the dairy nutrients management program advisory and oversight committee.

NEW SECTION. Sec. 9. (1) The conservation commission shall establish up to four dairy nutrients management technical assistance teams by December 31, 1998. The teams shall be geographically located throughout the state. Each team shall consist of one or more professional engineers and local conservation district employees.

(2) By October 1, 1999, each team shall develop a set of standards and specifications to assist dairy producers in developing and implementing dairy nutrients management plans. Standards and specifications developed by a technical assistance team shall be appropriate to the soils and other conditions of that geographic area.

Sec. 10. RCW 90.64.030 and 1993 c 221 s 4 are each amended to read as follows:

((~~Upon receiving a complaint or upon its own determination that a dairy animal feeding operation is a likely source of water quality degradation,~~)) The dairy nutrients management inspection team may investigate a dairy to determine whether a dairy producer is registered, has an approved dairy nutrients management plan, and is implementing that plan. The ((~~department~~)) dairy nutrients management inspection team may investigate a dairy ((~~animal feeding operation~~)) farm to determine whether the operation is discharging directly pollutants or ((~~recently~~)) has ((~~discharged~~)) a record of directly discharging pollutants into surface or ground waters of the state as provided under the inspection program in section 4 of this act. The dairy nutrients management inspection team shall make a written report of its findings and provide a copy of the report to the dairy producer within fourteen days of the inspection. The ((~~department~~)) dairy nutrients management inspection team shall investigate a written complaint filed with the department within ((~~ten days~~)) forty-eight hours and shall make a written report of its findings including the results of any water quality measurements, photographs, or other pertinent information. A copy of the findings shall be provided ((~~upon request~~)) to the dairy ((~~animal feeding operation~~)) producer subject to the complaint. All findings shall be entered into the data base identified in section 8 of this act.

((~~Those dairy animal feeding operations that are~~)) A dairy farm that is determined to be a significant contributor of pollution based on actual water quality tests, photographs, or other pertinent information ((~~if immediate corrective actions are not possible,~~)) shall be ((~~designated as a concentrated dairy animal feeding operation and shall be~~)) subject to the provisions of this chapter, unless the major violation of water quality standards is a first occurrence for that farm and the producer has not otherwise had a history of noncompliance with those standards.

Sec. 11. RCW 90.64.050 and 1993 c 221 s 6 are each amended to read as follows:

(1) The department has the following duties:

(a) Identify existing or potential water quality problems resulting from dairy farms through implementation of the inspection program in section 4 of this act;

(b) Receive, process, and verify complaints concerning discharge of pollutants from all dairy farms ((~~regardless of size~~));

(c) Determine if a dairy-related water quality problem requires immediate corrective action under the Washington state water pollution control laws, chapter 90.48 RCW, or the Washington state water quality standards adopted under chapter 90.48 RCW((~~, or other authorities~~)). The department shall maintain the lead enforcement responsibility;

(d) Administer and enforce national pollutants discharge elimination system permits for operators of concentrated dairy animal feeding operations, where required by federal regulations((,)) and ((~~administer~~)) state laws;

(e) ((~~Appoint representatives, including dairy industry representatives, to participate in the compliance review committee that will annually review and update policy and disseminate information as needed~~)) Participate on the advisory and oversight committee;

(f) Encourage communication and cooperation between local department personnel and the appropriate conservation district personnel;

(g) ((~~Encourage~~)) Require the use of ((~~federal soil conservation service standards and specifications in designing best management practices for~~)) dairy ((~~waste~~)) nutrients management plans ((~~to protect water quality~~)) for entities required to plan under this chapter. Such plans shall meet the standards and specifications of:

(i) The natural resource and conservation service;

(ii) The geographically based standards under section 9 of this act;

(iii) Section 7(3) of this act; or

(iv) A professional engineer who meets the standards identified in this section;

(h) Provide to the commission and the advisory and oversight committee an annual report of dairy ((~~waste pollution~~)) nutrients management inspection, permitting, and enforcement activities.

(2) The department may not delegate its responsibilities in enforcement.

Sec. 12. RCW 90.64.060 and 1993 c 221 s 7 are each amended to read as follows:

(1) If the ((~~department~~)) dairy nutrients management inspection team determines that the operator of a dairy animal feeding operation has the means to correct a water quality problem in a manner that will prevent future contamination and does so promptly and such correction is maintained, the department shall cease pursuit of the complaint.

(2) If the ((~~department~~)) dairy nutrients management inspection team determines that an unresolved water quality problem from a dairy animal feeding operation requires immediate corrective action, the department shall notify the ((~~operator~~)) producer and the district in which the problem is located.

(((3) If immediate action is not necessary by the department, the handling of complaints will differ depending on the amount of information available and the compliance option selected by the conservation district involved.

~~(a) When the name and address of the party against whom the complaint was registered are known:~~

~~(i) Districts operating at levels 1 and 2 will receive a copy of complaint information, and compliance letter if one was sent out.~~

(ii) Districts operating at levels 3 and 4 will receive a copy of complaint information and the letter sent by the department to the operator informing the operator of the complaint and providing the operator with the opportunity to work with the conservation district on a voluntary basis.

(b) The department and the conservation district will work together at the local level to resolve complaints when the name and address of the party against whom the complaint was registered are unknown.))

Sec. 13. RCW 90.64.070 and 1993 c 221 s 8 are each amended to read as follows:

(1) The conservation district has the following duties:

(a) ((~~Adopt and annually update the water quality section in the conservation district dairy waste management plan~~)) Provide technical assistance to the department in identifying existing water quality problems resulting from dairy farms through implementation of the inspection program in section 4 of this act;

(b) ((~~As part of the district annual report, include a water quality progress report on dairy waste management activities conducted that are related to this chapter~~)) Immediately refer complaints received from the public regarding discharge of pollutants to the department;

(d) ((~~Adopt and carry out a compliance option from level 1, level 2, level 3, or level 4~~)) Provide technical assistance to dairy producers in developing and implementing a dairy nutrients management plan; and

(e) Review and approve dairy nutrients management plans.

(2) The district's capability to carry out its responsibilities ((~~in the four levels of compliance~~)) under this chapter is contingent upon the availability of funding and resources to implement a dairy waste management program.

Sec. 14. RCW 90.64.080 and 1993 c 221 s 9 are each amended to read as follows:

(1) The conservation commission has the following duties:

(a) ((~~Forward to the department the dairy waste management plan progress reports;~~

~~(b)~~)) Provide assistance as may be appropriate to the conservation districts in the discharge of their responsibilities as management agencies in dairy ((~~waste~~)) nutrients management program implementation;

((~~(c)~~)) (b) Provide coordination for conservation district programs at the state level through special arrangements with appropriate federal and state agencies;

((~~(d)~~)) (c) Inform conservation districts of activities and experiences of other conservation districts relative to agricultural water quality protection, and facilitate an interchange of advice, experience, and cooperation between the districts;

((~~(e)~~)) (d) Encourage communication between the conservation district personnel and local department personnel;

((~~(f)~~)) (e) Appoint conservation district representatives to serve on the ((~~compliance review~~)) advisory and oversight committee with advice of the Washington association of conservation districts;

((~~(g) Appoint a commission representative to participate on the compliance review committee that will annually review and update policy and disseminate information as needed;~~

~~(h)~~)) (f) Provide a chair to the advisory and oversight committee; and

(g) Work with the department to provide communication outreach to representatives of agricultural and environmental organizations to receive feedback on implementation of this chapter.

(2) The commission's capability to carry out its responsibilities under this chapter is contingent upon the availability of funding and resources to implement a dairy ((~~waste~~)) nutrients management program.

NEW SECTION. Sec. 15. (1) When corrective actions are required, the department shall provide copies of all final dairy farm inspection reports and documentation of all formal regulatory and enforcement actions taken by the department to the local conservation district and to the appropriate dairy farm within fourteen days.

(2) The local conservation district shall provide a copy of a completed dairy nutrients management plan to the department within fourteen days of plan approval by the district.

Sec. 16. RCW 90.48.144 and 1995 c 403 s 636 are each amended to read as follows:

Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, every person who:

(1) Violates the terms or conditions of a waste discharge permit issued pursuant to RCW 90.48.180 or 90.48.260 through 90.48.262, or

(2) Conducts a commercial or industrial operation or other point source discharge operation without a waste discharge permit as required by RCW 90.48.160 or 90.48.260 through 90.48.262, or

(3) Violates the provisions of RCW 90.48.080, or other sections of this chapter, chapter 90.64 RCW, or chapter 90.56 RCW or rules or orders adopted or issued pursuant to ((~~either of~~)) those chapters, shall incur, in addition to any other penalty as provided by law, a penalty in an amount of up to ten thousand dollars a day for every such violation. Each and every such violation shall be a separate and distinct offense, and in case of a continuing violation, every day's continuance shall be and be deemed to be a separate and distinct violation. Every act of commission or omission which procures, aids or abets in the violation shall be considered a violation under the provisions of this section and subject to the penalty herein provided for. The penalty amount shall be set in consideration of the previous history of the violator and the severity of the violation's impact on public health and/or the environment in addition to other relevant factors. The penalty herein provided for shall be imposed pursuant to the procedures set forth in RCW 43.21B.300.

NEW SECTION. Sec. 17. The dairy waste management account is created in the custody of the state treasurer. All receipts from monetary penalties levied pursuant to violations of this chapter must be deposited into the account except those receipts held for two weeks under RCW 90.64.050. Expenditures from the account may be used only for the commission to provide grants to local conservation districts for the sole purpose of assisting dairy farms to develop and fully implement dairy nutrients management plans. Only the chairman of the commission or the chairman's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

Sec. 18. RCW 90.48.465 and 1997 c 398 s 2 are each amended to read as follows:

(1) The department shall establish annual fees to collect expenses for issuing and administering each class of permits under RCW 90.48.160, 90.48.162, and 90.48.260. An initial fee schedule shall be established by rule within one year of March 1, 1989, and thereafter the fee schedule shall be adjusted no more often than once every two years. This fee schedule shall apply to all permits, regardless of date of issuance, and fees shall be assessed prospectively. All fees charged shall be based on factors relating to the complexity of permit issuance and compliance and may be based on pollutant loading and toxicity and be designed to encourage recycling and the reduction of the quantity of pollutants. Fees shall be established in amounts to fully recover and not to exceed expenses incurred by the department in processing permit applications and modifications, monitoring and evaluating compliance with permits, conducting inspections, securing laboratory analysis of samples taken during inspections, reviewing plans and documents directly related to operations of permittees, overseeing performance of delegated pretreatment programs, and supporting the overhead expenses that are directly related to these activities.

(2) The annual fee paid by a municipality, as defined in 33 U.S.C. Sec. 1362, for all domestic wastewater facility permits issued under RCW 90.48.162 and 90.48.260 shall not exceed the total of a maximum of fifteen cents per month per residence or residential equivalent contributing to the municipality's wastewater system. The department shall adopt by rule a schedule of credits for any municipality engaging in a comprehensive monitoring program beyond the requirements imposed by the department, with the credits available for five years from March 1, 1989, and with the total amount of all credits not to exceed fifty thousand dollars in the five-year period.

(3) The department shall ensure that indirect dischargers do not pay twice for the administrative expense of a permit. Accordingly, administrative expenses for permits issued by a municipality under RCW 90.48.165 are not recoverable by the department.

(4) In establishing fees, the department shall consider the economic impact of fees on small dischargers and the economic impact of fees on public entities required to obtain permits for storm water runoff and shall provide appropriate adjustments. The fee for a national pollutant discharge elimination system permit issued for discharges related to manure or other dairy nutrients from a dairy farm as defined under chapter 90.64 RCW shall be fifty cents per head of cattle covered by the permit.

(5) All fees collected under this section shall be deposited in the water quality permit account hereby created in the state treasury. Moneys in the account may be appropriated only for purposes of administering permits under RCW 90.48.160, 90.48.162, and 90.48.260.

(6) Beginning with the biennium ending June 30, 1997, the department shall present a biennial progress report on the use of moneys from the account to the legislature. The report will be due December 31st of odd-numbered years. The report shall consist of information on fees collected, actual expenses incurred, and anticipated expenses for the current and following fiscal years.

NEW SECTION. Sec. 19. RCW 90.64.090 and 1993 c 221 s 10 are each repealed.

NEW SECTION. Sec. 20. Sections 3 through 9, 15, and 17 of this act are each added to chapter 90.64 RCW.