S-4257

AN ACT Relating to dairy nutrient management; amending RCW 90.64.010, 90.64.030, 90.64.050, 90.64.060, 90.64.070, 90.64.080, 90.64.120, and 43.21B.300; adding new sections to chapter 90.64 RCW; adding a new section to chapter 15.44 RCW; creating a new section; and repealing RCW 90.64.005 and 90.64.090.

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

NEW SECTION. Sec. 1. INTENT. It is the intent of this chapter to establish a credible registration and inspection program for dairy animal feeding operations to address the excessive discharge of nutrients or pollutants to waters of the state and lead to compliance by the industry with water quality laws. 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 the purpose of this chapter to create a balanced program involving technical assistance, regulation, and enforcement with coordination and oversight of the program by an advisory committee composed of agency, industry, and other representatives. Additionally, the legislature intends to clarify the current coordination procedures and responsibilities between the department, the conservation commission, and conservation districts.

NEW SECTION. Sec. 2. REGISTRATION. (1) Each year the department shall obtain from the food safety and animal health division of the department of agriculture a current list of all grade A licensed dairy farms in the state.

(2) By July 15th of each year, the department shall mail to each dairy animal feeding operation a facility registration form. The form shall require the following information:

(a) The name and address of the operator;

(b) The name and address of the facility;

(d) The number of cows;

(e) The number of young stock; and

(f) The number of acres owned and rented in the operation.

(3) The facility registration form shall also provide four options for dairy animal feeding operations to register with the department demonstrating how compliance with state and federal water quality laws, rules, and regulations will be achieved:

(a) That the dairy animal feeding operation holds a current national pollution discharge elimination system permit;

(b) That the dairy animal feeding operation has a fully implemented dairy nutrient management plan that conforms with technical standards and specifications of the natural resources conservation service. When registering, dairy animal feeding operations selecting a registration option under this subsection shall provide certification by the conservation district or registered professional engineer that the nutrient management plan is current for the existing herd size and all facilities needed to implement the plan have been fully constructed. Plans shall be submitted to the conservation district by August 1st. Decisions by conservation districts on whether to provide certification under this subsection shall be made by August 20th. The owner or operator of the dairy animal feeding operation shall also certify the dairy nutrient management plan is being fully implemented;

(c) That the dairy animal feeding operation will develop and fully implement by September 1, 1999, a dairy nutrient management plan based on best management practices that will eliminate the discharge of pollutants to waters of the state. The list of best management practices contained in the natural resource conservation service technical manuals and additional alternative best management practices developed in accordance with section 14 of this act may be used by the producer in preparation of the plan; or

(d) That the dairy animal feeding operation has entered into a contract for at least the ensuing one-year period to conduct water quality sampling of waters adjacent to the operation and lands that have received applications of dairy waste nutrients that meets the requirements established in section 4 of this act. A copy of the signed contract shall be submitted to the department. The dairy animal feeding operation shall maintain records for tracking nutrient management, which shall be provided upon request of the department.

(4) Failure of a dairy animal feeding operation to register with the department by September 1st as required by this section places the dairy animal feeding operation in the unregistered status category.

NEW SECTION. Sec. 3. INSPECTIONS. (1) All dairy animal feeding operations are subject to inspections by the department in accordance with this section. The purpose of the inspection is to determine compliance with this chapter, chapter 90.48 RCW, and all other applicable state and federal water quality laws, rules, and regulations.

(2) The department should inspect all dairy animal feeding operations a minimum of once every twenty-four months.

(3) Those dairy animal feeding operations fully implementing an animal waste management plan meeting federal natural resources conservation service technical standards and specifications shall be inspected at a reduced frequency.

(4) The department shall strive to inspect dairy animal feeding operations in the unregistered category within the first six months following closure of the registration period.

(5) The following categories of farms are the highest priority for inspection by the department:

(a) Farms in the unregistered category under this chapter;

(b) Farms that have chosen to conduct water quality monitoring and for which the monitoring results either show a violation of state surface water quality standards under chapter 173-201A WAC, or farms that have chosen this monitoring registration option and do not fulfill all of the requirements of section 4 of this act;

(c) All farms in those watersheds where the department has determined dairy farms are a likely source of water quality degradation;

(d) Farms registered under section 2(3)(c) of this act; and

(e) Farms for which the department receives an oral or written water pollution complaint.

(6) Those dairy animal feeding operations covered under a state or the national pollution discharge elimination system waste discharge permit shall be inspected as determined necessary by the department to achieve and maintain compliance with permit requirements.

(7) Notwithstanding any requirement under chapter 34.05 RCW, the department is not required to adopt rules to implement this section.

NEW SECTION. Sec. 4. SAMPLING AND FREQUENCY CRITERIA. (1) Any dairy animal feeding operation that selects the water quality monitoring option as provided in subsection (3) of this section shall design and conduct the monitoring program in accordance with the requirements in this section.

(2) A scaled map shall be provided with the first monitoring report of each registration period showing the location of:

(a) All major farm and waste management structures;

(b) All waters of the state on and immediately adjacent to the farm;

(d) Fields where manure and processed wastewater are normally applied; and

(e) Any other pertinent features.

(3) At a minimum, the farm monitoring programs shall include the following elements:

(a) Sampling shall be conducted once each month in the first week of November, January, and March. Sampling may be postponed by one month if the sampling location is physically inaccessible due to streamflow conditions. If sampling is postponed, written notice of the postponement shall be provided to the department by the end of that particular sampling month;

(b) A minimum of one station immediately upstream of the farm and one station immediately downstream of the farm;

(d) The streamflow at each station at the time of sampling shall be estimated or measured;

(e) The classification of the waters being sampled under the state surface water quality standards, chapter 173-201A WAC, shall be identified; and

(f) Any notes, observations, or photographs that may be relevant.

(4) Sampling stations shall be located in those surface waters of the state that are in closest proximity to the waste storage pond and fields normally receiving applications of animal waste. Surface waters of the state include lakes, rivers, ponds, streams, saltwater, and drainage ditches.

(5) A quality assurance-quality control plan shall also be submitted with the initial monitoring report each registration period for the monitoring to be conducted. A laboratory accredited by the department shall conduct all laboratory analyses. The department shall consult with the dairy nutrient management program compliance review committee to finalize a model quality assurance-quality control plan by July 15, 1998.

(6) All dairy animal feeding operations exercising the monitoring option in this section shall also maintain records for tracking nutrients applied to the operator's fields. The records shall be provided in a timely manner to the department upon request.

(7) All monitoring results in this section shall be provided by the contracting firm to the dairy animal feeding operation and the department of ecology not later than the end of each sampling month. All monitoring results shall be provided on a standard monitoring reporting form provided to all dairy animal feeding operations by the department with the initial mailing of the registration form. The standard monitoring reporting form shall be developed in consultation with the dairy nutrient management program compliance review committee.

NEW SECTION. Sec. 5. FARM PLAN IMPLEMENTATION. Dairy animal feeding operations that register under section 2(3)(c) of this act shall file an initial registration form on or before September 1, 1998. Dairy animal feeding operations shall indicate current best management practices currently in use and that the operation intends to implement an alternative farm plan that addresses storage and use of nutrients. To do this, producers may choose to include best management practices contained in the natural resource conservation service technical manuals or additional best management practices developed by the dairy nutrient management program compliance review committee formed by the department. The dairy animal feeding operation shall have practices in the alternative farm plan implemented by September 1, 1999. The department should conduct a formal inspection done of the facility within the ensuing seven months. The purpose of the inspection is for the department to identify whether the plan appears to be effective in complying with state and federal water quality laws.

Sec. 6. 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) "Catastrophic" means a tornado, hurricane, earthquake, or other extreme condition that would cause an overflow from a required waste retention structure.

(2) "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.

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

((~~(2)~~)) (4) "Conservation districts" or "district" means a subdivision of state government organized under chapter 89.08 RCW.

((~~(3)~~)) (5) "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)~~)) No dairy animal feeding operation as defined under this subsection or designated under RCW 90.64.020(1) may be classified as a concentrated dairy animal feeding operation if it only discharges to surface waters of the state during a twenty-five-year, twenty-four-hour or larger rainfall event.

(6) "Dairy animal feeding operation," "farm," or "dairy farm" 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)~~)) (7) "Department" means the department of ecology under chapter 43.21A RCW.

((~~(6)~~)) (8) "Director" means the director of the department of ecology, or his or her designee.

Sec. 7. 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,~~)) (1) The department may investigate a dairy animal feeding operation to determine whether the operation is discharging directly pollutants or recently has discharged directly pollutants into surface or ground waters of the state under the program established in section 3 of this act. The department shall investigate a written complaint filed with the department within ten days 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.

(2) Those dairy animal feeding operations that are determined to be either a concentrated dairy animal feeding operation under RCW 90.64.010(5) or 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~~)) required to obtain a national pollution discharge elimination system permit if required by federal law. Coverage by such permit shall be maintained until the operation has been shown to be in compliance with permit conditions for three consecutive years. Additionally, those operations that are determined to be in violation of water quality laws are subject to the enforcement provisions of chapters 43.05 and 90.48 RCW, including civil penalties levied under RCW 90.48.144.

(3) A discharge to surface waters of the state shall not be considered a violation of chapter 90.48 RCW if at the time of discharge all of the following conditions are met:

(a) The farm has a current national pollution discharge elimination system permit;

(b) The discharge is due to chronic or catastrophic events;

(c) The farm has a wastewater management system designed, constructed, and operated to contain all process-generated wastewater plus average annual precipitation minus evaporation plus the runoff from a twenty-five-year, twenty-four-hour rainfall event for that location.

(4) The department shall publicize all enforcement actions, including minor first offenses, through the issuance of press releases.

Sec. 8. 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~~)) animal feeding operations through implementation of the registration and inspection programs in sections 2, 3, and 4 of this act;

(b) Receive, process, and verify complaints concerning discharge of pollutants from all dairy ((~~farms~~)) animal feeding operations 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, 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~~)) Chair and appoint department representatives to the dairy nutrient management program compliance review committee;

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

(g) Encourage the use of federal ((~~soil~~)) natural resource conservation service standards and specifications and the development of new technologies and ideas that can be used in designing best management practices for dairy ((~~waste~~)) nutrient management plans to protect water quality;

(h) Provide to the commission ((~~an annual~~)) and dairy nutrient management program compliance review committee a semiannual report of dairy ((~~waste pollution~~)) nutrient registration, inspection, permitting, and enforcement activities.

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

Sec. 9. RCW 90.64.060 and 1993 c 221 s 7 are each amended to read as follows:

((~~(1)~~)) If the department 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 determines that an unresolved water quality problem from a dairy animal feeding operation requires immediate corrective action, the department shall notify the operator 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. 10. 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~~)) nutrient management plan;

(b) As part of the district annual report, include a water quality progress report on dairy ((~~waste~~)) nutrient management activities conducted that are related to this chapter; and

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

~~(d) Adopt and carry out a compliance option from level 1, level 2, level 3, or level 4~~)).

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

Sec. 11. 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~~)) nutrient management plan progress reports prepared under RCW 90.64.070(1)(b);

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

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

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

(f) Appoint conservation district representatives to serve on the dairy nutrient management program compliance review committee with advice of the Washington association of conservation districts;

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

(h) 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~~)) nutrient management program.

Sec. 12. RCW 90.64.120 and 1993 c 221 s 13 are each amended to read as follows:

Nothing in this chapter shall affect the department's authority or responsibility to administer or enforce the national pollutant discharge elimination system permits for operators of concentrated dairy animal feeding operations, where required by federal regulations or to administer the provisions of chapter 90.48 RCW including RCW 90.48.090.

NEW SECTION. Sec. 13. DATA BASE. (1) By September 30, 1998, the department shall develop and maintain a data base to account for the implementation of the registration and inspection programs identified in sections 2, 3, and 4 of this act. The data base shall track the following:

(a) The names of the dairy animal feeding operations that were sent registration forms and the registration option chosen by each dairy animal feeding operation;

(b) The dates that the dairy animal feeding operation was inspected and the general result of the inspection;

(d) A summary of any water quality data that was collected;

(e) The status of implementation of dairy nutrient management plans for each dairy animal feeding operation;

(f) The number of inspections conducted by each inspector by month and year; and

(g) The type and number of technical assistance and outreach activities conducted by each inspector by month.

(2) A summary of the data base information shall be provided semiannually to the dairy nutrient management program compliance review committee members.

NEW SECTION. Sec. 14. NUTRIENT MANAGEMENT PLANS‑-GUIDELINES. (1) By January 1, 1999, the conservation commission and the department shall develop and distribute to conservation districts and other interested and affected parties guidelines for the development of nutrient management plans.

(2) The conservation commission and the department of ecology shall form an advisory committee to assist developing these guidelines. The advisory committee shall be composed of representatives from associations of dairy producers, the federal environmental protection agency, the federal natural resources conservation service, the Washington State University cooperative extension, and local conservation districts.

(3) The guidelines will identify those elements that should be contained in dairy nutrient management plans prepared after January 1, 1999, to satisfy the requirements of this chapter. These guidelines will include those elements and best management practices that should be used when preparing a dairy nutrient management plan for the following goals to be achieved:

(a) Clearly written plans;

(b) Dairy producers and others can readily understand plans;

(d) Plans are of a consistent general format and content; and

(e) Plans consistently contain scientifically sound best management practices to ensure the protection of surface and ground water quality.

(4) Alternative best management practices shall be developed by the advisory committee established in subsection (2) of this section and made available to the department by July 15th of each year.

NEW SECTION. Sec. 15. DAIRY NUTRIENT MANAGEMENT PROGRAM COMPLIANCE REVIEW COMMITTEE. (1) A dairy nutrient management program compliance review committee is established. The committee shall be chaired by the department and the conservation commission. The purpose of the committee is to provide accountable direction and oversight of the dairy nutrient management registration and inspection programs.

(2) The committee shall be composed of representatives of the department, representatives nominated from associations of dairy animal feeding operations and up to five other agencies and interested parties as determined by the department in consultation with representatives of dairy animal feeding operations.

(3) The committee shall perform the following functions:

(a) Review the dairy animal feeding operations registration form;

(b) Review the environmental excellence award program that recognizes dairy animal feeding operations who have shown outstanding achievement in meeting water quality goals;

(d) Disseminate information as needed;

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

(f) Review the semiannual data base report provided by the department under section 13 of this act;

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

(h) Monitor the development and use of the dairy animal nutrient management planning guidelines adopted by the department; and

(i) Create and recommend standardized dairy farm nutrient management facility inspection procedures and a reporting format to be used by the department.

(4) The dairy nutrient management program compliance review committee does not replace or infringe upon the authority, duties, or responsibilities of the pollution control hearings board.

Sec. 16. RCW 43.21B.300 and 1993 c 387 s 23 are each amended to read as follows:

(1) Any civil penalty provided in RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department((~~, the administrator of the office of marine safety,~~)) or the local air authority, describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the department((~~, the administrator,~~)) or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department((~~, the administrator,~~)) or authority may remit or mitigate the penalty upon whatever terms the department((~~, the administrator,~~)) or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.

(2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department((~~, the administrator,~~)) or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty.

(3) A penalty shall become due and payable on the later of:

(a) Thirty days after receipt of the notice imposing the penalty;

(b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or

(4) If the amount of any penalty is not paid to the department ((~~or the administrator~~)) within thirty days after it becomes due and payable, the attorney general, upon request of the department ((~~or the administrator~~)), shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.

(5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account, created by RCW 70.105.180, and RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390 and of those penalties collected from dairy animal feeding operations for violations under RCW 90.48.144 ten thousand dollars shall be transferred at the end of each fiscal year to the Washington state dairy products commission and placed in an account established solely for the purposes in section 17 of this act.

NEW SECTION. Sec. 17. A new section is added to chapter 15.44 RCW to read as follows:

ENVIRONMENTAL EXCELLENCE AWARDS PROGRAM. The commission, in consultation with the department of ecology, associations representing dairy farmers, and other interested organizations, shall formulate and administer an annual environmental excellence awards program. The purpose of the program is to provide recognition in a nonmonetary form to those dairy farms in the state that have instituted practices or installed facilities that demonstrate exceptional natural resources stewardship. The program is contingent on the availability of funds.

The commission may use funds in an account it establishes for the development and administration of the environmental excellence awards program and related activities. No appropriation is required for disbursements from this account.

NEW SECTION. Sec. 18. The following acts or parts of acts are each repealed:

(1) RCW 90.64.005 and 1993 c 221 s 1; and

(2) RCW 90.64.090 and 1993 c 221 s 10.

NEW SECTION. Sec. 19. CAPTIONS NOT LAW. Captions used in sections 1 through 5, 13 through 15, and 17 of this act are not any part of the law.

NEW SECTION. Sec. 20. Sections 1 through 5 and 13 through 15 of this act are each added to chapter 90.64 RCW.