H-2345

AN ACT Relating to water pollution control; amending RCW 90.48.010, 90.48.020, and 43.21C.0383; reenacting and amending RCW 43.21B.110; adding new sections to chapter 90.48 RCW; creating new sections; and providing expiration dates.

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

Sec. 1. RCW 90.48.010 and 1973 c 155 s 1 are each amended to read as follows:

(1) It is declared to be the public policy of the state of Washington to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the ((~~industrial~~)) development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington. Consistent with this policy, the state of Washington will exercise its powers, as fully and as effectively as possible, to retain and secure high quality for all waters of the state. The state of Washington in recognition of the federal government's interest in the quality of the navigable waters of the United States, of which certain portions thereof are within the jurisdictional limits of this state, proclaims a public policy of working cooperatively with the federal government in a joint effort to extinguish the sources of water quality degradation, while at the same time preserving and vigorously exercising state powers to insure that present and future standards of water quality within the state shall be determined by the citizenry, through and by the efforts of state government, of the state of Washington.

(2) The legislature finds that while existing federal and state water pollution control laws have resulted in cleaner water for citizens of Washington state, too many water bodies still exceed existing water quality standards. Such exceedances are caused both by point and nonpoint sources of pollution. It is the policy of the state of Washington to ensure the attainment of water quality standards that protect and restore the ability of the state's waters to provide multiple benefits; including, but not limited to, domestic, municipal, and industrial water supply; aquatic species; irrigation; and recreation.

(3) Water quality standards should be attained through a variety of means, including the development and implementation of total maximum daily loads as provided under the clean water act, and the implementation of other pollution control measures. The legislature believes that such flexibility must be available if the state is to attain water quality standards as soon as possible. The legislature also believes that most water segments should meet water quality standards as soon as possible after first being identified as water quality limited, and that five-year and ten-year milestones should be established that include pollutant reduction targets that lead to this goal. The legislature further believes that the burden for attaining water quality standards must be shared among the various contributors to water quality impairment in proportion to their contribution.

(4) The legislature finds that a watershed approach to water quality improvement allows the consideration of multiple factors and of their interactions. It also provides a means for bringing together those persons who will need to implement necessary measures to improve water quality, as well as others who may be interested in water quality.

(5) Water quality monitoring is becoming increasingly important as the state makes commitments to attain water quality standards, recover aquatic species, and evaluate the effectiveness of actions taken to attain those goals. As a result, the legislature believes it is important to enhance the quality and breadth of existing water quality monitoring programs.

(6) The legislature finds that a state-managed plan using a mixture of total maximum daily loads and other pollution control measures is the most effective and efficient method for the state to improve water quality. While the legislature believes the state is the best manager of the state's water quality, it recognizes that the federal government has ultimate authority over any state total maximum daily load program under the federal clean water act. Therefore, it is the intent of the legislature to make sections 3 through 11 of this act operative only if the federal government does not assume complete responsibility for the state total maximum daily load program under the clean water act. However, this section does not affect the ability of the state to continue implementing programs that improve water quality.

Sec. 2. RCW 90.48.020 and 1995 c 255 s 7 are each amended to read as follows:

((~~Whenever the word~~)) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Characteristic use" means the uses for which a water body has been classified by the department.

(2) "Person" ((~~is used in this chapter, it shall be construed to~~)) includes any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual or any other entity whatsoever.

((~~Wherever the words~~)) (3) "Waters of the state" ((~~shall be used in this chapter, they shall be construed to~~)) includes lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and watercourses within the jurisdiction of the state of Washington.

((~~Whenever the word~~)) (4) "Pollution" ((~~is used in this chapter, it shall be construed to~~)) means such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

((~~Wherever the word~~)) (5) "Department" ((~~is used in this chapter it shall~~)) means the department of ecology.

((~~Whenever the word~~)) (6) "Director" ((~~is used in this chapter it shall~~)) means the director of ecology.

((~~Whenever the words~~)) (7) "Clean water act" means the federal water pollution control act of 1972, as amended (86 Stat. 896; 33 U.S.C. Sec. 1251 et seq.).

(8) "Aquatic noxious weed" ((~~are used in this chapter, they have~~)) has the meaning prescribed under RCW 17.26.020.

(9) "Listing cycle" means the four-year period, or other period as determined by the federal environmental protection agency, between adoption by rule of a list of water quality limited segments by the department and the adoption by rule of the next list of such segments by the department.

(10) "Load" means an amount of matter or thermal energy that is introduced into a receiving water.

(11) "Loading" means to introduce matter or thermal energy into a receiving water.

(12) "Loading capacity" means the greatest amount of loading that a water can receive without violating water quality standards.

(13) "Allocation" means the portion of a receiving water's loading capacity that is attributed to an existing or future point or nonpoint source of pollution, to natural background sources, or to nonpoint sources in the aggregate.

(14) "Total maximum daily loads" means the sum of allocations for point and nonpoint sources and natural background, plus a margin of safety and a reserve for growth.

(15) "Other pollution control measures" means the implementation of voluntary actions, or incentive-based or regulatory measures, that are applied to specific water quality limited segments, that are intended to achieve attainment with water quality standards as soon as possible, and that include monitoring and adaptive management. This definition is not intended to expand the reach of existing regulatory controls. Such actions and measures include, but are not limited to, the conservation reserve enhancement program, provisions pertaining to on-site septic systems and to storm water, dairy nutrient management under chapter 90.64 RCW, the forest practices act, or habitat conservation plans as provided under section 9 of this act.

(16) "Wastewater discharge permit" means an individual, model, or general permit issued by the department that specifies treatment, monitoring, and reporting requirements for the discharge of wastewater, and that is intended to satisfy the requirements of the clean water act and of this chapter.

(17) "Water quality limited segment" means any surface water segment, as defined by the department, where it is known that water quality does not meet applicable water quality standards, even after the application of technology-based effluent limitations required by sections 301(b) and 306 of the clean water act.

(18) "Effluent trading" means a method to attain or maintain water quality standards by allowing sources of pollution that can achieve greater pollutant reduction than is otherwise required to sell or barter the credits for its excess reduction to another source unable to reduce its own pollutants as cheaply.

NEW SECTION. Sec. 3. WATER QUALITY LIMITED SEGMENTS--DATA RELIABILITY FOR DECISIONS TO LIST‑-ACCESS TO PRIVATE PROPERTY. (1) The list of water quality limited segments that is required to be submitted to the federal environmental protection agency under the clean water act shall be based upon data that are accurate and reflective of current conditions and that comply with the high professional standards of quality assurance and quality control as determined by the advisory committee identified in subsection (3) of this section. A water segment may be listed as water quality limited under section 4 of this act only when:

(a) Documentation is provided showing the submitted data have met the data quality objectives and other requirements of an approved quality assurance program plan; or

(b) The department independently samples the water body segment to verify the suspected water quality exceedance.

(2) The department shall coordinate a reliable, state-wide water quality monitoring network that relies upon existing water quality data collected by the department and others in compliance with the data quality objectives and quality assurance and quality control guidelines recommended by the advisory committee in subsection (3) of this section and adopted by the department. To the extent possible and appropriate, the water quality monitoring network shall also include other state agencies, tribes, counties, cities, federal agencies, water and wastewater utilities, and special purpose districts, as well as private entities that wish to provide such data. The network shall provide data for both ambient water quality monitoring and development of the list of water quality limited segments. The department shall coordinate the collection of water quality data among state agencies to ensure that monitoring is comprehensive without being duplicative, and that state monitoring resources are directed toward filling the most critical information gaps. In coordinating this network, the department shall ensure state-wide consistency, provide calibration of local monitoring efforts, provide data verification and validation, and assess long-term water quality trends.

(3) By October 1, 1999, the department shall appoint an advisory committee comprised of one representative from each of the following agencies and interests: The department, the United States environmental protection agency, the United States geological survey, the department of health, the department of fish and wildlife, the department of transportation, one representative appointed by the Washington state association of counties, one representative appointed by the association of Washington cities, a public water supply utility, the conservation commission, the University of Washington, Washington State University, the association of Washington business, the agricultural sector, an irrigation district, and an environmental group. Each of these representatives shall have experience in the collection, analysis, and interpretation of environmental data. The committee shall also consist of a state senator from each of the two major caucuses appointed by the president of the senate, and a state representative from each of the two major caucuses appointed by the speaker of the house of representatives. The committee shall have the following purposes:

(a) Development of qualitative and quantitative objectives regarding the precision, bias, representativeness, completeness, and comparability required for water quality monitoring data to serve program purposes;

(b) Development of quality assurance and quality control guidelines for the collection, analysis, and interpretation of water quality data for freshwater;

(c) Development of data interpretation guidelines regarding the quantity and representativeness of data required to determine whether water quality standards are being met, and whether a water quality condition is caused by natural background factors or by anthropogenic factors; and

(d) Comparison of the proposed use-based water quality standards with the current classification system in terms of the protection provided to characteristic uses, as well as the regulatory and economic impacts on point and nonpoint sources.

(4) The committee identified in subsection (3) of this section shall provide its recommendations to the legislature, the department, and the United States environmental protection agency by December 31, 2000.

(5) The department shall adopt data quality objectives and quality assurance and quality control guidelines based upon the recommendations made by the committee identified in subsection (3) of this section and the comments provided by the entities identified in subsection (4) of this section. These objectives and guidelines shall be updated periodically to reflect new methods and instrumentation.

(6) After July 1, 2001, the department shall require that any water quality data submitted to the state for purposes of ambient monitoring or compiling a list of water quality limited segments comply with the department's data quality objectives and quality assurance and quality control guidelines.

(7) For water quality samples that can only be obtained by entering and crossing over private property, the department or its designee must receive permission from the owner of the property to be entered before collecting the sample. Property owners or others who wish to verify the analysis of a water quality sample may request to split a sample with the department and may provide that sample to an accredited laboratory for analysis.

NEW SECTION. Sec. 4. LISTING OF WATER QUALITY LIMITED SEGMENTS. (1) After July 1, 2001, the department shall prepare a list of water quality limited segments, as required under section 303(d) of the clean water act, that is based upon data that are collected and analyzed in compliance with the department's data quality objectives and quality assurance and quality control guidelines. The list shall include all water segments that do not meet water quality standards. Water segments shall remain on the list until they meet water quality standards and shall be removed from the list as soon as they are found to meet water quality standards. The list shall be submitted to the environmental protection agency as required by the environmental protection agency.

(2) To ensure an opportunity for public participation in the process of listing water quality limited segments, the department shall:

(a) Provide notice in the Washington State Register that it is beginning a new cycle for listing of water quality limited segments;

(b) Develop a proposed list of water quality limited segments, and compare the proposed list to the previous list approved by the environmental protection agency to identify water quality trends;

(c) Submit the proposed list to the environmental protection agency, affected tribal governments, and the general public for review;

(d) Develop responses to the comments received;

(e) Prepare the final list and adopt the final list by order; and

(f) Submit the final list to the environmental protection agency for approval.

(3) Listing of water quality limited segments as required under this chapter is not subject to the state environmental policy act, chapter 43.21C RCW.

Sec. 5. RCW 43.21C.0383 and 1996 c 322 s 1 are each amended to read as follows:

(1) The issuance, reissuance, or modification of a waste discharge permit that contains conditions no less stringent than federal effluent limitations and state rules is not subject to the requirements of RCW 43.21C.030(2)(c). This exemption applies to existing discharges only and does not apply to new source discharges.

(2) The adoption by the department of a list of water quality limited segments as provided in chapter 90.48 RCW, and the adoption by the department of total maximum daily loads as provided in chapter 90.48 RCW are not subject to the requirements of RCW 43.21C.030(2)(c).

NEW SECTION. Sec. 6. EFFECT OF LISTING. (1) A wastewater discharge permit may not be issued to a new source or to a new discharger if the discharge would cause or contribute to an existing violation of water quality standards in water segments identified as water quality limited. Nothing in this act shall prevent any existing point source discharge, or any activity that may lead to a nonpoint source discharge conducted in compliance with all applicable federal, state, or local laws, regulations, and requirements affecting water quality, solely because a total maximum daily load has not been completed.

(2) Nothing in this act shall prevent any new or expanded activity that may lead to a nonpoint source discharge, provided that any such activity is conducted in compliance with all applicable federal, state, or local laws, regulations, and requirements that protect water quality.

NEW SECTION. Sec. 7. TOTAL MAXIMUM DAILY LOADS. (1) On water quality limited segments where nonpoint sources are the likely cause of exceedances, other pollution control measures shall apply. The department shall develop total maximum daily loads for nonpoint sources only after a review of applicable monitoring data shows that these measures have not been effective in reducing pollutants in the amount necessary for the segment to show measurable improvements in water quality five years after the segment is listed, or five years after the effective date of this section, whichever is later.

(2) On water quality limited segments affected by both point and nonpoint sources, the department shall develop total maximum daily loads that allocate loads to each of the point sources and aggregate loads to nonpoint sources.

(3) On water quality limited segments where point sources are the likely cause of exceedances, the department shall develop total maximum daily loads, unless all of the point sources can agree on load reductions that would lead to the attainment of water quality standards more quickly than total maximum daily loads.

(4) Priority for total maximum daily load development shall be based on the following factors:

(a) Risk to public health, aquatic life, and other water-dependent wildlife, including species listed or proposed for listing as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.); and

(b) Vulnerability of the water quality limited segment to degradation.

(5) Total maximum daily loads shall include the following elements:

(a) Determining the pollutant of concern and quantifying the target or desired end-points of the total maximum daily load process;

(b) Quantifying the pollutant load that must be reduced to meet the target;

(c) Identifying the responsible sources, or categories of sources of the pollutant that causes the exceedance, and quantifying the degree to which each source or source category contributes to the exceedance;

(d) Setting the load allocation among identified sources, including gross aggregate nonpoint sources, along with a quantified margin of safety, and any allocation for future growth;

(e) Specifying and quantifying control actions and implementation tools, methods, and authorities that will be used to achieve the allocations, in addition to schedules and milestones for implementing the identified actions;

(f) Determining the degree of use attainment, remaining variance from the target, compliance with implementation plans, and the accuracy of sources and source contributions identified in the total maximum daily load; and

(g) Describing how the total maximum daily load will be modified or revised to ensure water quality standards are met in response to follow-up monitoring and evaluation results.

(6) Department actions to initiate total maximum daily loads shall be taken in the town or city nearest to the location of the water quality limited segment in order to facilitate participation by affected parties. Those persons who would be affected by an allocation of loads must be given an opportunity to be involved in the total maximum daily load development process from the outset.

(7) Allocations should be developed through consensus. If consensus is not achievable, a mediator may be retained at the group's expense to negotiate an allocation. If an agreement is still not forthcoming within an agreed-upon time frame, the department shall allocate loads.

(8) To encourage public participation in the process of developing total maximum daily loads, the department shall provide an opportunity for public comment on any total maximum daily load that meets all of the requirements of this section before its adoption by the department.

(9) A total maximum daily load that meets all of the requirements of this section shall be adopted by the department as an order under the administrative procedure act, chapter 34.05 RCW. The order that adopts the allocation of pollutant loads must be published in the Washington State Register. The order does not provide a separately enforceable cause of action and may be implemented only through wastewater discharge permits or through regulatory programs that address nonpoint sources. The order may be appealed under RCW 43.21B.110 for the sole purpose of redetermining an element or elements of the total maximum daily load.

(10) The department shall consider requests from wastewater discharge permit holders to engage in effluent trading as defined in the draft framework for watershed-based trading as developed by the environmental protection agency when:

(a) Proposed trades would result in meeting water quality standards throughout a watershed; and

(b) Proposed trades are developed within a total maximum daily load or equivalent analytical framework. The department must develop guidelines for evaluation and approval of effluent trades.

(11) Planning units conducting water quality planning under chapter 90.82 RCW may implement other pollution control measures, or lead the development of total maximum daily loads, or request the department to develop total maximum daily loads, for single pollutants that are widespread throughout the planning area such as exceedances of temperature, sediments, turbidity, or dissolved oxygen standards.

Sec. 8. RCW 43.21B.110 and 1998 c 262 s 18, 1998 c 156 s 8, and 1998 c 36 s 22 are each reenacted and amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

(a) Civil penalties imposed pursuant to 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.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, ((~~and~~)) 90.56.330, and section 7 of this act.

(c) The issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

(g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

(h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

(c) Proceedings by the department relating to general adjudications of water rights pursuant to chapter 90.03 or 90.44 RCW.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

NEW SECTION. Sec. 9. LIMITATIONS ON ENFORCEMENT. (1) The department shall not enforce exceedances of water quality standards identified as limiting for salmonids, other aquatic life, and other water-dependent wildlife that are listed as threatened or endangered under the federal endangered species act, or that are candidates for listing, against persons who are subject to the following binding agreements:

(a) The use of field office technical guides as required by the natural resources conservation service;

(b) Mitigation requirements as the result of a jeopardy opinion by federal agencies under section 7 of the federal endangered species act; or

(c) A habitat conservation plan under section 10 of the federal endangered species act that has been approved by federal agencies as satisfying the requirements of the act for salmonids, other aquatic life, or other water-dependent wildlife that are listed as threatened or endangered, or are candidates for listing.

(2) The immunity provided under subsection (1) of this section shall be provided only as long as measurable progress toward attainment of water quality standards can be demonstrated at five-year intervals after adoption of the mechanisms identified under subsection (1) of this section for up to fifteen years. If net progress cannot be demonstrated in each five-year period for up to fifteen years, the immunity shall lapse.

(3) For purposes of compliance with this section, water quality criteria for aquatic species shall be limited to the conventional parameters of dissolved oxygen, total dissolved gases, turbidity, pH, and temperature, as well as the numeric and narrative criteria for material that is toxic and deleterious to aquatic species.

NEW SECTION. Sec. 10. MARINE WATERS‑-TOTAL MAXIMUM DAILY LOADS. Because of their location downstream of most human activities, marine waters tend to be the final repository for many pollutants generated by human activity. Marine waters are also often subject to complex and multiple sources of pollutants, many of which are ongoing. Many pollutants bind with sediments, and have created the need for cleanups under the federal comprehensive environmental response, compensation, and liability act of 1980 and the state model toxics control act, chapter 70.105D RCW. While the cleanup of these sites will prevent contamination of the water column from sediments, it may not prevent contamination caused by other sources that may exist. As a result, sediment cleanup alone may be insufficient to guarantee attainment of water quality standards, unless the record of decision issued pursuant to a cleanup under the federal comprehensive environmental response, compensation, and liability act of 1980 or chapter 70.105D RCW also includes a plan for controlling ongoing pollutant sources.

For water quality limited segments in marine waters where no sediment cleanup is planned; or where a sediment cleanup has been completed, but no source control plan has been adopted; a total maximum daily load shall be developed and implemented. Such total maximum daily loads should be prepared concurrently with a sediment cleanup plan.

NEW SECTION. Sec. 11. STORM WATER ADVISORY COMMITTEE. (1) The department of ecology shall convene a storm water advisory committee for the purpose of updating the department's storm water management plan and the Puget Sound storm water management manual. The advisory committee shall be comprised of one or more representatives selected by each of the following agencies and associations: The department of ecology, the department of natural resources, the department of fish and wildlife, the department of transportation, the Washington state association of counties, the association of Washington cities, and the two leading professional associations for wastewater system engineers and managers.

(2) The advisory committee shall be appointed no later than September 1, 1999, and shall complete its work by December 31, 2000. The department of ecology shall provide a progress report to the legislature on storm water management issues and the approach to these issues taken by the advisory committee no later than December 31, 1999.

(3) This section expires December 31, 2000.

NEW SECTION. Sec. 12. SHORELINE MANAGEMENT ADVISORY COMMITTEE. (1) The department of ecology shall convene a shoreline management advisory committee for the purpose of developing recommendations for updating the shoreline management act, chapter 90.58 RCW. The advisory committee shall be comprised of one representative selected by each of the following agencies and associations: The department of ecology, the department of natural resources, the department of fish and wildlife, the marine trade association, the Washington public ports association, the association of Washington business, the shellfish industry, the fishing industry, a county west of the crest of the Cascade mountains, a county east of the crest of the Cascade mountains, a city with over one hundred thousand population, a city with under one hundred thousand population, and an environmental group. Appointments to the shoreline management advisory committee shall reflect the geographical balance of population within the state.

(2) The advisory committee shall be appointed no later than September 1, 1999, and shall provide its recommendations for amendments to the shoreline management act to the legislature by December 1, 2000. The department of ecology shall provide a progress report to the legislature on shoreline management issues and the approach to these issues taken by the advisory committee no later than December 31, 1999.

(3) This section expires December 31, 2000.

NEW SECTION. Sec. 13. A new section is added to chapter 90.48 RCW to read as follows:

If the federal government chooses, or is required, to assume complete responsibility for the state total maximum daily load program under the federal clean water act, sections 3 through 11 of this act shall become null and void.

NEW SECTION. Sec. 14. CAPTIONS NOT LAW. Captions used in this act are not any part of the law.

NEW SECTION. Sec. 15. Sections 3, 4, 6, 7, 9, and 10 of this act are each added to chapter 90.48 RCW.

NEW SECTION. Sec. 16. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1999, in the omnibus appropriations act, this act is null and void.