S-1687.2  _______________________________________________


                    SUBSTITUTE SENATE BILL 5442



State of Washington      55th Legislature     1997 Regular Session


By Senate Committee on Natural Resources & Parks (originally sponsored by Senators Swecker, Loveland, Anderson, Stevens, Haugen, Prince, Hale, Franklin, Sheldon, Benton, Rasmussen and Zarelli)


Read first time 03/03/97.

Permitting expedited flood repairs during flooding emergencies.

    AN ACT Relating to flood damage reduction; amending RCW 75.20.100 and 86.26.007; and creating a new section.




    NEW SECTION.  Sec. 1.  The legislature finds that flooding emergencies in recent years demonstrate the need for a more cooperative strategy among federal, state, and local emergency response agencies.  The legislature further finds that regulatory processes may impede action by landowners and local government which can prevent or reduce flood damage.  It is the intent of this act to streamline state regulatory requirements, encourage cooperative emergency response efforts, while providing for the consideration of instream resources, and provide additional funding for local flood prevention and dredging programs.


    Sec. 2.  RCW 75.20.100 and 1993 sp.s. c 2 s 30 are each amended to read as follows:

    In the event that any person or government agency desires to construct any form of hydraulic project or perform other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state, such person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure the written approval of the department as to the adequacy of the means proposed for the protection of fish life.  This approval shall not be unreasonably withheld.  Except as provided in RCW 75.20.1001 ((and 75.20.1002)), the department shall grant or deny approval within forty-five calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section.  The applicant may document receipt of application by filing in person or by registered mail.  A complete application for approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within the mean higher high water line in salt water or within the ordinary high water line in fresh water, and complete plans and specifications for the proper protection of fish life.  The forty-five day requirement shall be suspended if (1) after ten working days of receipt of the application, the applicant remains unavailable or unable to arrange for a timely field evaluation of the proposed project; (2) the site is physically inaccessible for inspection; or (3) the applicant requests delay.  Immediately upon determination that the forty-five day period is suspended, the department shall notify the applicant in writing of the reasons for the delay.  Approval is valid for a period of up to five years from date of issuance.  The permittee must demonstrate substantial progress on construction of that portion of the project relating to the approval within two years of the date of issuance.  If the department denies approval, the department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life.  Protection of fish life shall be the only ground upon which approval may be denied or conditioned.  Chapter 34.05 RCW applies to any denial of project approval, conditional approval, or requirements for project modification upon which approval may be contingent.  If any person or government agency commences construction on any hydraulic works or projects subject to this section without first having obtained written approval of the department as to the adequacy of the means proposed for the protection of fish life, or if any person or government agency fails to follow or carry out any of the requirements or conditions as are made a part of such approval, the person or director of the agency is guilty of a gross misdemeanor.  If any such person or government agency is convicted of violating any of the provisions of this section and continues construction on any such works or projects without fully complying with the provisions hereof, such works or projects are hereby declared a public nuisance and shall be subject to abatement as such.

    The department shall, at the request of a county, develop five-year maintenance approval agreements, consistent with comprehensive flood control management plans or watershed management plans adopted by a county, to allow for work on public and private property for bank stabilization, bridge repair, removal of sand bars and debris, channel maintenance, and other flood damage repair and reduction activity under agreed-upon conditions and times without obtaining permits for specific projects.

    For the purposes of this section and RCW 75.20.103, "bed" ((shall)) means the land below the ordinary high water lines of state waters.  This definition shall not include irrigation ditches, canals, storm water run-off devices, or other artificial watercourses except where they exist in a natural watercourse that has been altered by man.

    The phrase "to construct any form of hydraulic project or perform other work" shall not include the act of driving across an established ford.  Driving across streams or on wetted stream beds at areas other than established fords requires approval.  Work within the ordinary high water line of state waters to construct or repair a ford or crossing requires approval.

    ((In case of an emergency arising from weather or stream flow conditions or other natural conditions)) In instances arising from weather or stream flow conditions or other natural conditions that are not an emergency, but where normal processing within the next forty-five days would result in loss of public or private property, cause an unanticipated extreme hardship for the applicant, or cause unacceptable environmental damage, the department shall, upon receipt of a written application, issue an expedited hydraulic project approval.  Expedited hydraulic project approvals take precedence over nonemergency hydraulic project approvals and must be issued within seven days of the request:  PROVIDED, a county declares the project meets the definition of an emergency in chapter 43.21C RCW.

    In instances arising from weather or stream flow conditions, or other natural conditions that constitute an emergency for which action must be taken immediately or within a time too short to allow full compliance with the requirements of chapter 43.21C RCW, the department, through its authorized representatives, shall issue immediately upon request oral approval for removing any obstructions, repairing existing structures, restoring stream banks, or to protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written approval prior to commencing work.  Conditions of an oral approval shall be reduced to writing within thirty days and complied with as provided for in this section.  Oral approval shall be granted immediately upon request, for ((a)) stream crossing during an emergency situation.

    This section shall not apply to the construction of any form of hydraulic project or other work which diverts water for agricultural irrigation or stock watering purposes authorized under or recognized as being valid by the state's water codes, or when such hydraulic project or other work is associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020.  These irrigation or stock watering diversion and streambank stabilization projects shall be governed by RCW 75.20.103.


    Sec. 3.  RCW 86.26.007 and 1996 c 283 s 903 are each amended to read as follows:

    The flood control assistance account is hereby established in the state treasury.  At the beginning of the 1997-99 fiscal biennium and each biennium thereafter the state treasurer shall transfer from the general fund to the flood control assistance account an amount of money which, when combined with money remaining in the account from the previous biennium, will equal ((four)) ten million dollars.  Moneys in the flood control assistance account may be spent only after appropriation for purposes specified under this chapter or((, during the 1995-97 biennium,)) for state and local response and recovery costs associated with federal emergency management agency (FEMA) disasters ((number 1079 (November/December 1995 storms), FEMA disaster number 1100 (February 1996 floods), and for prior biennia disaster recovery costs.  To the extent that moneys in the flood control assistance account are not appropriated during the 1995-97 fiscal biennium for flood control assistance, the legislature may direct their transfer to the state general fund)).


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