S-0356.1  _______________________________________________


                         SENATE BILL 5435



State of Washington      55th Legislature     1997 Regular Session


By Senators Stevens, Hargrove, Anderson, Benton, Rossi and Rasmussen


Read first time 01/27/97.  Referred to Committee on Natural Resources & Parks.

Clarifying the authority to regulate surface mining.

    AN ACT Relating to surface mining; amending RCW 78.44.011, 78.44.020, 78.44.040, 78.44.050, 78.44.085, and 36.70A.060; and creating a new section.




    NEW SECTION.  Sec. 1.  The legislature recognizes that the extraction of minerals by surface mining is an essential activity making an important contribution to the economic well-being of the state and nation.  The citizens of the state are rapidly running out of approved sites at which to conduct these activities.  Therefore, the available sources of these minerals are nearly exhausted.

    While it is not possible to extract minerals without producing some environmental impacts, the current structure of regulation of mining operations is doing much more than preventing or mitigating conditions that would be detrimental to the environment and property rights of the citizens of the state.  In the current regulatory environment economically viable permits simply cannot be obtained for the vast majority of the sites where the minerals are located.

    Surface mining must take place in diverse areas where the geologic, topographic, climatic, biologic, and social conditions are significantly different, and reclamation specifications must vary accordingly.  But surface mining is a finite use of the land and another beneficial use must follow through reclamation.

    Therefore, the legislature finds that a balance between appropriate environmental regulation and the appropriate regulation of production operations and conservation of minerals is in the best interests of the citizens of the state.


    Sec. 2.  RCW 78.44.011 and 1993 c 518 s 1 are each amended to read as follows:

    The legislature recognizes that the extraction of minerals through surface mining has historically included regulatory involvement by both state and local governments.

    It is the intent of the legislature to clarify that surface mining is an appropriate land use, subject to reclamation authority exercised by the department of natural resources and land use ((and operation)) regulatory authority by counties, cities, and towns.  The authority for any state agency or local government to regulate operations is derived from this chapter and exercised only as described in this chapter.


    Sec. 3.  RCW 78.44.020 and 1993 c 518 s 3 are each amended to read as follows:

    The purposes of this chapter are to:

    (1) Provide that the usefulness, productivity, and scenic values of all lands and waters involved in surface mining within the state will receive the greatest practical degree of protection and reclamation at the earliest opportunity following completion of surface mining;

    (2) Provide for the greatest practical degree of state-wide consistency in the regulation of surface mines;

    (3) Apportion regulatory authority between state and local governments in order to minimize redundant regulation of mining;

    (4) Ensure that reclamation is consistent with local land use plans; and

    (5) Ensure the power of local government to regulate land use and specific elements of operations ((pursuant to section 16 of this act)).


    Sec. 4.  RCW 78.44.040 and 1993 c 518 s 6 are each amended to read as follows:

    (1) The department of natural resources is charged with the administration of reclamation and operations not regulated by local governments under this chapter.  In order to implement and enforce this chapter, the department, under the administrative procedure act (chapter 34.05 RCW), may from time to time adopt those rules necessary to carry out the purposes of this chapter.

    (2)(a) Counties, cities, and towns may regulate surface mining operations only by ordinance and only in accordance with the requirements and limitations of this subsection.

    (b) Local surface mining operating standards shall:

    (i) Be limited to those standards that address mitigation of the following impacts of operations:

    (A) Traffic;

    (B) Light emission;

    (C) Visual screening;

    (D) Noise emission; and

    (E) Other significant or substantial mining impacts that are not covered by a subject area of regulation embodied in any other state or federal law;

    (ii) Be performance-based, objective standards that:

    (A) Are directly and proportionately related to limiting surface mining impacts;

    (B) Are reasonable and generally capable of being achieved;

    (C) Take into account existing and available technologies; and

    (D) May be met by any lawful means selected by the applicant or operator that, in the judgment of the county, city, or town, achieve compliance with the standard;

    (iii) Limit application and monitoring fees to the amount necessary to pay the costs of administering, processing, monitoring, and enforcing the regulation of surface mining in accordance with this section;

    (iv) Except as otherwise provided in this section, implement the ordinance through an operating plan review and approval process.  Such approval process shall:

    (A) Require submittal of sufficient, complete, and accurate information, as specified by the local ordinance, to allow the decision maker to review the plan for compliance with local standards;

    (B) At the option of the county, city, or town, provide for administrative approval subject to appeal or for initial consideration through a public hearing process; and

    (C) Require that project-specific conditions or restrictions be based upon written findings of facts demonstrating their need to achieve compliance with local standards;

    (v) Subject to subsection (3) of this section, provide that approvals issued will be valid for fifty years.

    (3) Operating regulations and amendments thereto adopted pursuant to this section may be applied to lawfully preexisting mining operations only if the local ordinance:

    (a) Limits application of subsection (2)(b)(i)(A) of this section relating to traffic to the designation of approved haul routes;

    (b) Exempts such preexisting operations from any operating plan review and approval process;

    (c) Provides reasonable time periods for compliance with new or amended local operating standards that in no event may be less than one year; and

    (d) Includes a variance procedure to allow continuation of existing operations for a nonconforming surface mining operation where strict adherence to a local operating standard would be economically or operationally impractical due to conditions relating to site configuration, topography, or the nature of historic operations.

    (4) Nothing in this section precludes a county, city, or town from exercising the express authority delegated to it by a state agency under state law, or from complying with state law when required as a regulated entity.


    Sec. 5.  RCW 78.44.050 and 1993 c 518 s 7 are each amended to read as follows:

    The department shall have the exclusive authority to regulate surface mine reclamation ((except that, by contractual agreement, the department may delegate some or all of its enforcement authority to a county, city, or town)).  All counties, cities, or towns shall have the authority to zone surface mines and adopt ordinances regulating those operations ((pursuant to section 16 of this act)) authorized in RCW 78.44.040, except that county, city, or town operations ordinances may be preempted by the department during the emergencies outlined in RCW 78.44.200 and related rules.

    This chapter shall not alter or preempt any provisions of the state fisheries laws (Title 75 RCW), the state water allocation and use laws (chapters 90.03 and 90.44 RCW), the state water pollution control laws (chapter 90.48 RCW), the state wildlife laws (Title 77 RCW), state noise laws or air quality laws (Title 70 RCW), shoreline management (chapter 90.58 RCW), the state environmental policy act (chapter 43.21C RCW), state growth management (chapter 36.70A RCW), state drinking water laws (chapters 43.20 and 70.119A RCW), or any other state statutes.


    Sec. 6.  RCW 78.44.085 and 1996 c 70 s 1 are each amended to read as follows:

    (1) An applicant for a public or private reclamation permit shall pay an application fee to the department before being granted a surface mining permit.  The amount of the application fee shall be six hundred fifty dollars.

    (2) After June 30, 1993, each public or private permit holder shall pay an annual permit fee of six hundred fifty dollars.  The annual permit fee shall be payable to the department on the first anniversary of the permit date and each year thereafter.  Annual fees paid by a county for mines used exclusively for public works projects and having less than seven acres of disturbed area per mine shall not exceed one thousand dollars.  Annual fees are waived for all mines used primarily for public works projects if the mines are owned and primarily operated by counties with 1993 populations of less than twenty thousand persons.

    (3) After July 1, 1995, the department may modify annual permit fees by rule if:

    (a) The total annual permit fees are reasonably related to the approximate costs of administering the department's surface mining regulatory program;

    (b) The annual fee does not exceed five thousand dollars; and

    (c) The mines are small mines in remote areas that are used primarily for public service, then lower annual permit fees may be established.

    (4) Appeals from any determination of the department shall not stay the requirement to pay any annual permit fee.  Failure to pay the annual fee may constitute grounds for an order to suspend surface mining or cancellation of the reclamation permit as provided in this chapter.

    (5) All fees collected by the department shall be deposited into the surface mining reclamation account.

    (((6) If the department delegates enforcement responsibilities to a county, city, or town, the department may allocate funds collected under this section to the county, city, or town.))


    Sec. 7.  RCW 36.70A.060 and 1991 sp.s. c 32 s 21 are each amended to read as follows:

    (1) Each county that is required or chooses to plan under RCW 36.70A.040, and each city within such county, shall adopt development regulations on or before September 1, 1991, to assure the conservation of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170.  Regulations adopted under this subsection may not prohibit uses legally existing on any parcel prior to their adoption and shall remain in effect until the county or city adopts development regulations pursuant to RCW 36.70A.120.  Such regulations shall assure that the use of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the continued use, in the accustomed manner and in accordance with best management practices, of these designated lands for the production of food, agricultural products, or timber, or for the extraction of minerals.  Counties and cities shall require that all plats, short plats, development permits, and building permits issued for development activities on, or within three hundred feet of, lands designated as agricultural lands, forest lands, or mineral resource lands, contain a notice that the subject property is within or near designated agricultural lands, forest lands, or mineral resource lands on which a variety of commercial activities may occur that are not compatible with residential development for certain periods of limited duration.

    (2) Each county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170.  For counties and cities that are required or choose to plan under RCW 36.70A.040, such development regulations shall be adopted on or before September 1, 1991.  For the remainder of the counties and cities, such development regulations shall be adopted on or before March 1, 1992.

    (3) Such counties and cities shall review these designations and development regulations when adopting their comprehensive plans under RCW 36.70A.040 and implementing development regulations under RCW 36.70A.120 and may alter such designations and development regulations to insure consistency.

    (4) The development regulations adopted by such counties and cities regarding surface mining operations under RCW 78.44.040 shall not be inconsistent with rules adopted by the department of natural resources.

    (5) Forest land and agricultural land located within urban growth areas shall not be designated by a county or city as forest land or agricultural land of long-term commercial significance under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights.


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