S-4797

AN ACT Relating to an aquatic plant management permit program; amending RCW 90.48.445 and 17.24.051; reenacting and amending RCW 75.20.100; adding a new chapter to Title 90 RCW; creating a new section; making an appropriation; providing an expiration date; and declaring an emergency.

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

NEW SECTION. Sec. 1. FINDINGS AND PURPOSE. The legislature finds that it is in the best interest of the people of the state to provide a predictable approach to control of aquatic plants that is protective of both human health and the environment. The legislature intends, through an aquatic plant management permit program, to create a coordinated, timely, and predictable permit process that will assist property owners and local governments in controlling aquatic plants.

NEW SECTION. Sec. 2. DEFINITIONS. The definitions in this section apply throughout this chapter, unless the context requires otherwise.

(1) "Aquatic plant" includes any noxious weed on the state noxious weed list adopted under RCW 17.10.080; any other nuisance or beneficial aquatic plants not on the state noxious weed list; and any algae or cyanobacteria.

(2) "Aquatic plant management" means controlling, eradicating, or removing aquatic plants through chemical, biological, or mechanical means.

(3) "Aquatic plant management plan" means any plan that reviews alternative aquatic plant management methods according to the principles of integrated pest management, as defined in RCW 17.15.010(1), determines feasible, effective solutions to be implemented, and provides for the monitoring and evaluation of the plan's effectiveness.

(4) "Department" means the department of ecology.

(5) "Person" means an individual or a public or private entity or organization and includes local, state, and federal government agencies, and all business organizations including corporations and partnerships.

NEW SECTION. Sec. 3. AQUATIC PLANT MANAGEMENT PERMIT. No person may control, eradicate, remove, or otherwise alter any aquatic plants in waters of the state unless an aquatic plant management permit for such activity has been issued by the department, or unless: (1) The removal is incidental or unintentional, (2) the activity removes noxious weeds with hand tools, or (3) the activity is in waters expressly exempted by this chapter or by rule. Application for an aquatic plant management permit to engage in aquatic plant management activities shall be made to the department.

NEW SECTION. Sec. 4. RULE MAKING. (1) The department and the department of agriculture shall jointly develop rules to implement the aquatic plant management permit program, in consultation with the department of natural resources, the department of health, the department of fish and wildlife, and the state noxious weed board. The rules shall be adopted by the department. The rules shall be oriented towards developing solutions to noxious and nuisance aquatic plant problems, shall provide first for the protection of human health, and second for the protection of wildlife and the environment, and shall provide for measurable results. The rules shall also be based on the principles of integrated pest management as defined in RCW 17.15.010(1) and shall define a tiered approach to aquatic plant management, including the tiers described in section 5 of this act. The rules shall include, at a minimum, the following elements:

(a) The submittal requirements for a permit application;

(b) Criteria for issuing, modifying, or denying permit applications;

(c) Operating and threshold requirements for chemical, biological, and mechanical controls based on the risk assessment in subsection (2) of this section;

(d) An administrative appeals process;

(e) An opportunity for public comment on permit applications;

(f) Penalties and remedies for noncompliance by an applicant or the department;

(g) Maximum timelines for permit issuance, not to exceed sixty days from the time a complete application is received;

(h) A method to update the rules periodically as new information or products are developed; and

(i) Criteria and forms for state environmental policy act review under chapter 43.21C RCW, appropriate to an aquatic environment, to expedite issuance of individual permits.

(2) The department and the department of agriculture shall contract for a risk assessment of alternative aquatic plant management methods. Consultants may be nominated by national scientific organizations or by the public. Review of chemical control methods shall focus on issues specific to Washington state that are not addressed through federal pesticide registration and labeling. Information in the risk assessment shall be reviewed by experts in the fields of aquatic plant management and water quality, and shall be used to develop the operating and threshold requirements referenced in subsection (1)(c) of this section.

(3) Environmental review of the proposed rules conducted according to chapter 43.21C RCW shall incorporate and update all existing state environmental policy act documents related to aquatic plant management.

NEW SECTION. Sec. 5. TIERED APPROACH. (1) The aquatic plant management permit program shall include a tiered approach to aquatic plant management. At a minimum, the permit program shall include the following tiers:

(a) An expedited permit may be approved for aquatic plant management activities on lakes less than five acres where the following criteria are met: (i) There is no outlet; (ii) there are no salmonid fish in the lake; (iii) there is no drinking water use of the lake; (iv) there is no swimming; and (v) the lake is in single ownership or all owners support the exemption. Applicants for an expedited permit under this subsection shall submit a notification that establishes compliance with these criteria and describes measures to ensure compliance with the limitations on drinking water and swimming use during the management activities. The department shall review the notification compliance with the criteria, and may deny the permit only for inapplicability of the criteria or inadequate measure to enforce the limitations of the criteria. If the department does not make a decision on the permit within thirty days of receiving the notification, the permit is deemed approved. In such lakes, any state-registered aquatic pesticide may be used. Use of the pesticide shall be conducted in a manner to protect human health and safety, and to prevent injury to nontargeted plant and animal life.

(b) The operating and threshold requirements of the aquatic plant management permit established in section 4(1)(c) of this act shall provide procedures and criteria by which information developed through site-specific review in completing the lake management or aquatic vegetation management plan may be used to formulate specific permit provisions. State environmental policy act review under chapter 43.21C RCW must be completed for any aquatic plant management plan. Waters with adopted aquatic plant management plans may be issued a multiyear aquatic plant management permit.

(c) Pilot use of state-registered aquatic pesticides that does not meet the operating requirements in section 4(1)(c) of this act may be permitted to develop solutions to noxious and nuisance conditions affecting the public health, to address early infestation of noxious weeds, and for the purpose of data collection and research to assist the department with the review and revision of the operating requirements of the aquatic plant management permit program.

(d) General permits may be issued on a regional or state-wide basis to control noxious aquatic weeds. Any person may apply for coverage under the general permit.

(2) The department and the department of agriculture may expand these tiers to address other circumstances or waters.

NEW SECTION. Sec. 6. PERMIT COORDINATION. The rules developed by the department and the department of agriculture to implement the aquatic plant management permit program shall include the requirements of other aquatic plant management permitting programs, including the water quality permit required by RCW 90.48.445, the hydraulic project approval required by RCW 75.20.100 and 75.20.108, and the special permit for biological control required by RCW 17.24.051. Issuance of an aquatic plant management permit satisfies the requirements of RCW 90.48.445, 75.20.100, and 17.24.051. If an application for an aquatic plant management permit includes biological control methods, the department shall defer to the department of agriculture and the requirements of RCW 17.24.051. If an application for an aquatic plant management permit includes mechanical control methods, the department shall defer to the department of fish and wildlife and the requirements of RCW 75.20.100 and 75.20.108.

NEW SECTION. Sec. 7. DEMONSTRATION PROJECT. (1) Control of Eurasian watermilfoil is a growing problem in Washington lakes and rivers. No aquatic pesticides currently authorized for aquatic use by the department of ecology have been effective in eradicating Eurasian watermilfoil in large water bodies. With no available chemical control methods, early infestation of Eurasian watermilfoil will spread both within and between lakes.

(2) The department of ecology shall establish and administer a demonstration project for the control of Eurasian watermilfoil, for the purpose of evaluating the effectiveness of the pesticide 2,4-D at eradicating early infestations. The department shall authorize one or more demonstration projects, including a demonstration project on Loon Lake in Stevens county.

(3) Demonstration projects shall be administered at the local level by a county weed board. The department of ecology shall enter into grant agreements with demonstration project jurisdictions by June 1, 1998. The grant agreement shall include reporting requirements, timelines, and a fund disbursement schedule based on agreed project milestones.

(4) A local match of fifty percent of the total grant amount is required for any demonstration project.

(5) Information gathered through the demonstration projects shall be used by the department of ecology in developing the rules under section 4 of this act.

(6) This section shall expire on July 1, 1999.

NEW SECTION. Sec. 8. CAPTIONS NOT LAW. Captions used in this chapter are not any part of the law.

Sec. 9. RCW 75.20.100 and 1997 c 385 s 1 and 1997 c 290 s 4 are each reenacted and amended to read as follows:

(1) 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 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.

(2)(a) Except as provided in RCW 75.20.1001, the department shall grant or deny approval of a standard permit 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.

(b) 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.

(i) 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;

(ii) The site is physically inaccessible for inspection; or

(iii) 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.

(d) For purposes of this section, "standard permit" means a written permit issued by the department when the conditions under subsections (3) and (6)(b) of this section are not met.

(3)(a) The department may issue an expedited written permit in those instances where normal permit processing would result in significant hardship for the applicant or unacceptable damage to the environment. In cases of imminent danger, the department shall issue an expedited written permit, upon request, for work to repair existing structures, move obstructions, restore banks, protect property, or protect fish resources. Expedited permit requests require a complete written application as provided in subsection (2)(b) of this section and shall be issued within fifteen calendar days of the receipt of a complete written application. Approval of an expedited permit is valid for up to sixty days from the date of issuance.

(b) For the purposes of this subsection, "imminent danger" means a threat by weather, water flow, or other natural conditions that is likely to occur within sixty days of a request for a permit application.

(c) The department may not require the provisions of the state environmental policy act, chapter 43.21C RCW, to be met as a condition of issuing a permit under this subsection.

(d) The department or the county legislative authority may determine if an imminent danger exists. The county legislative authority shall notify the department, in writing, if it determines that an imminent danger exists.

(4) Approval of a standard permit 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.

(5) If any person or government agency commences construction on any hydraulic works or projects subject to this section without first having obtained 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.

(6)(a) In case of an emergency arising from weather or stream flow conditions or other natural conditions, 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 to protect fish life shall be established by the department and 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.

(b) For purposes of this section and RCW 75.20.103, "emergency" means an immediate threat to life, the public, property, or of environmental degradation.

(c) The department or the county legislative authority may declare and continue an emergency when one or more of the criteria under (b) of this subsection are met. The county legislative authority shall immediately notify the department if it declares an emergency under this subsection.

(7) The department shall, at the request of a county, develop five-year maintenance approval agreements, consistent with comprehensive flood control management plans adopted under the authority of RCW 86.12.200, or other watershed plan approved by a county legislative authority, 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.

(8) 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.

A landscape management plan approved by the department and the department of natural resources under RCW 76.09.350(2), shall serve as a hydraulic project approval for the life of the plan if fish are selected as one of the public resources for coverage under such a plan.

(9) A permit issued under section 3 of this act satisfies the requirements under this section.

(10) For the purposes of this section and RCW 75.20.103, "bed" means the land below the ordinary high water lines of state waters. This definition does 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.

((~~(10)~~)) (11) The phrase "to construct any form of hydraulic project or perform other work" does 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.

Sec. 10. RCW 90.48.445 and 1995 c 255 s 3 are each amended to read as follows:

(1) The director shall issue or approve water quality permits for use by federal, state, or local governmental agencies and licensed applicators for the purpose of using, for aquatic noxious weed control, herbicides and surfactants registered under state or federal pesticide control laws. The issuance of the permits shall be subject only to compliance with: Federal and state pesticide label requirements, the requirements of the federal insecticide, fungicide, and rodenticide act, the Washington pesticide control act, the Washington pesticide application act, and the state environmental policy act; and applicable requirements established in an option or options recommended for controlling the noxious weed by a final environmental impact statement published under chapter 43.21C RCW by the department prior to May 5, 1995, by the department of agriculture, or by the department of agriculture jointly with other state agencies. This section may not be construed as requiring the preparation of a new environmental impact statement to replace a final environmental impact statement published before May 5, 1995.

(2) The director of ecology may not utilize this permit authority to otherwise condition or burden weed control efforts. The director's authority to issue water quality modification permits for activities other than the application of surfactants and approved herbicides, to control aquatic noxious weeds, is unaffected by this section.

(3) A permit issued under section 3 of this act satisfies the permit requirements under this section.

(4) As used in this section, "aquatic noxious weed" means an aquatic weed on the state noxious weed list adopted under RCW 17.10.080.

Sec. 11. RCW 17.24.051 and 1991 c 257 s 9 are each amended to read as follows:

The introduction into or release within the state of a plant pest, noxious weeds, bee pest, or any other organism that may directly or indirectly affect the plant life of the state as an injurious pest, parasite, predator, or other organism is prohibited, except under special permit issued by the department under rules adopted by the director. A special permit is not required if a permit has been issued under section 3 of this act. A special permit is not required for the introduction or release within the state of a genetically engineered plant or plant pest organism if the introduction or release has been approved under provisions of federal law and the department has been notified of the planned introduction or release. The department shall be the sole issuing agency for the permits. Except for research projects approved by the department, no permit for a biological control agent shall be issued unless the department has determined that the parasite, predator, or plant pathogen is target organism or plant specific and not likely to become a pest of nontarget plants or other beneficial organisms. The director may also exclude biological control agents that are infested with parasites determined to be detrimental to the biological control efforts of the state. The department may rely upon findings of the United States department of agriculture or any experts that the director may deem appropriate in making a determination about the threat posed by such organisms. In addition, the director may request confidential business information subject to the conditions in RCW 17.24.061.

Plant pests, noxious weeds, or other organisms introduced into or released within this state in violation of this section shall be subject to detention and disposition as otherwise provided in this chapter.

NEW SECTION. Sec. 12. Sections 1 through 6 and 8 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 13. 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. 14. Sections 8 and 9 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately.