AN
ACT Relating to compensatory mitigation; adding new sections to chapter 75.20
RCW; adding a new section to chapter 90.48 RCW; and adding a new chapter to
Title 90 RCW.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. (1)
The legislature finds that:
(a)
The state lacks a clear policy relating to the mitigation of wetlands and
aquatic habitat for infrastructure development;
(b)
Regulatory agencies have generally required project proponents to use
compensatory mitigation only at the site of the project's impacts and to
mitigate narrowly for the habitat or biological functions impacted by a
project;
(c)
This practice of considering traditional on-site, in-kind mitigation may
provide fewer environmental benefits when compared to innovative mitigation proposals
that provide benefits in advance of a project's planned impacts and that
restore functions or habitat other than those impacted at a project site; and
(d)
Regulatory decisions on development proposals that attempt to incorporate
innovative mitigation measures take an unreasonably long period of time and are
subject to a great deal of uncertainty and additional expenses.
(2)
The legislature therefore declares that it is the policy of the state to
authorize innovative mitigation measures by requiring state regulatory agencies
to consider mitigation proposals for infrastructure projects that are timed,
designed, and located in a manner to provide equal or better biological
functions and values compared to traditional on-site, in-kind mitigation proposals.
(3)
It is the intent of the legislature to authorize local governments to
accommodate the goals of this chapter. It is not the intent of the legislature
to: (a) Restrict the ability of a project proponent to pursue project specific
mitigation; or (b) create any new authority for regulating wetlands or aquatic
habitat beyond what is specifically provided for in this chapter.
NEW
SECTION. Sec. 2. The
definitions in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1)
"Mitigation" means sequentially avoiding impacts, minimizing impacts,
or compensating for remaining unavoidable impacts.
(2)
"Compensatory mitigation" means the restoration, creation,
enhancement, or preservation of uplands, wetlands, or other aquatic resources
for the purposes of compensating for unavoidable adverse impacts that remain
after all appropriate and practicable avoidance and minimization has been
achieved. "Compensatory mitigation" includes mitigation that:
(a)
Occurs at the same time as, or in advance of, a project's planned environmental
impacts;
(b)
Is located in a site either on, near, or distant from the project's impacts;
and
(c)
Provides either the same or different biological functions and values as the
functions and values impacted by the project.
(3)
"Infrastructure development" means an action that is critical for the
maintenance or expansion of an existing infrastructure feature such as a
highway, rail line, airport, marine terminal, utility corridor, harbor area, or
hydroelectric facility and is consistent with an approved land use planning
process. This planning process may include the growth management act, chapter
36.70A RCW, or the shoreline management act, chapter 90.58 RCW, in areas
covered by those chapters.
(4)
"Mitigation plan" means a document or set of documents developed
through joint discussions between a project proponent and environmental
regulatory agencies that describe the unavoidable wetland or aquatic resource
impacts of the proposed infrastructure development and the proposed
compensatory mitigation for those impacts.
(5)
"Project proponent" means a public or private entity responsible for
preparing a mitigation plan.
(6)
"Watershed" means an area identified as a state of Washington water
resource inventory area under WAC 173-500-040 as it exists on the effective
date of this section.
NEW
SECTION. Sec. 3. (1)
Project proponents may use a mitigation plan to propose compensatory mitigation
within a watershed. A mitigation plan shall:
(a)
Contain provisions that guarantee the long-term viability of the created,
restored, enhanced, or preserved habitat, including assurances for protecting
any essential biological functions and values defined in the mitigation plan;
(b)
Contain provisions for long-term monitoring of any created, restored, or
enhanced mitigation site; and
(c)
Be consistent with the local comprehensive land use plan and any other
applicable planning process in effect for the development area, such as an
adopted subbasin or watershed plan.
(2)
The departments of ecology and fish and wildlife may not limit the scope of
options in a mitigation plan to areas on or near the project site, or to
habitat types of the same type as contained on the project site. The
departments of ecology and fish and wildlife shall fully review and give due
consideration to compensatory mitigation proposals that improve the overall
biological functions and values of the watershed or bay and accommodate the
mitigation needs of infrastructure development.
The
departments of ecology and fish and wildlife are not required to grant approval
to a mitigation plan that the departments find does not provide equal or better
biological functions and values within the watershed or bay.
(3)
When making a permit or other regulatory decision under the guidance of this
chapter, the departments of ecology and fish and wildlife shall consider
whether the mitigation plan provides equal or better biological functions and
values, compared to the existing conditions, for the target resources or
species identified in the mitigation plan. This consideration shall be based
upon the following factors:
(a)
The relative value of the mitigation for the target resources, in terms of the
quality and quantity of biological functions and values provided;
(b)
The compatibility of the proposal with the intent of broader resource
management and habitat management objectives and plans, such as existing
resource management plans, watershed plans, critical areas ordinances, and
shoreline master programs;
(c)
The ability of the mitigation to address scarce functions or values within a
watershed;
(d)
The benefits of the proposal to broader watershed landscape, including the
benefits of connecting various habitat units or providing population-limiting
habitats or functions for target species;
(e)
The benefits of early implementation of habitat mitigation for projects that
provide compensatory mitigation in advance of the project's planned impacts;
and
(f)
The significance of any negative impacts to nontarget species or resources.
(4)
A mitigation plan may be approved through a memorandum of agreement between the
project proponent and either the department of ecology or the department of
fish and wildlife, or both.
NEW
SECTION. Sec. 4. (1)
In making regulatory decisions relating to wetland or aquatic resource
mitigation, the departments of ecology and fish and wildlife shall, at the
request of the project proponent, follow the guidance of sections 1 through 3
of this act.
(2)
If the department of ecology or the department of fish and wildlife receives
multiple requests for review of mitigation plans, each department may schedule
its review of these proposals to conform to available budgetary resources.
NEW
SECTION. Sec. 5. A
new section is added to chapter 75.20 RCW to read as follows:
The
department shall not require mitigation for sediment dredging or capping
actions that result in a cleaner aquatic environment and equal or better
habitat functions and values, if the actions are taken under a state or federal
cleanup action.
This
chapter shall not be construed to require habitat mitigation for navigation and
maintenance dredging of existing channels and berthing areas.
NEW
SECTION. Sec. 6. A
new section is added to chapter 75.20 RCW to read as follows:
When
reviewing a mitigation plan under RCW 75.20.100 or RCW 75.20.103, the
department shall, at the request of the project proponent, follow the guidance
contained in sections 1 through 4 of this act.
NEW
SECTION. Sec. 7. A
new section is added to chapter 90.48 RCW to read as follows:
When
exercising its powers under RCW 90.48.260, the department shall, at the request
of the project proponent, follow the guidance contained in sections 1 through 4
of this act.
NEW
SECTION. Sec. 8.
Sections 1 through 4 of this act constitute a new chapter in Title 90 RCW.
