BP BHEAD INT H [atlas:bill]

AN ACT Relating to water pollution control; amending RCW 90.48.010, 90.48.020, 90.82.060, and 90.82.090; adding new sections to chapter 90.48 RCW; and adding a new section to chapter 90.82 RCW.

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~~)) wildlife, and the ((~~industrial development~~)) economic health 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 as defined in RCW 90.54.020. It is also the preference of the state of Washington that water quality standards be attained through control measures intended to prevent discharge of pollutants, rather than through a system of allocation of loads and wasteloads.

(3) The burden of changing existing practices and obtaining pollutant discharge reductions as needed to attain water quality standards should be shared among the various contributors to water quality impairment in proportion to their contribution and in consideration of other equitable factors and natural background conditions. For water quality limited segments in waters that are shared with, or are upstream or downstream of waters subject to the jurisdiction of another state or Canada, the legislature intends that the department coordinate the development of water clean-up plans with the United States environmental protection agency and with water quality regulatory agencies in other jurisdictions to ensure equity for dischargers in Washington.

(4) The legislature finds that a watershed approach to water quality improvement allows the consideration of multiple factors and of their interactions. Therefore, this approach often provides a more effective means of controlling pollution and protecting water quality. It also provides a means for bringing together those persons who may be required to implement 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 of existing water quality monitoring programs.

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 uses" means the uses for which a water body has been classified by the department under state law and the federal clean water act.

(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 period, as determined by the federal environmental protection agency, between publication of a list of water quality limited segments by the department and the publication 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 capacity" means the greatest amount of loading that a water can receive without violating water quality standards.

(12) "Load allocation" means that portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution, or to natural background sources. Load allocations are best estimates of the loading, which may range from reasonably accurate estimates to gross allotments, depending on the availability of data and appropriate techniques for predicting loading. Wherever possible, natural background conditions and nonpoint sources shall be distinguished. Wherever possible, loads shall be allocated to categories of like sources, rather than to aggregates of different categories of sources.

(13) "Wasteload allocation" means that portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. Wasteload allocations constitute a type of water quality-based effluent limitation.

(14) "Total maximum daily loads" means the sum of the individual wasteload allocations for point sources and load allocations for nonpoint sources and natural background conditions. Such loads shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety, and may contain a reserve for growth.

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

(16) "Water clean-up plan" means a WRIA-scale plan that is intended to lead to the attainment of water quality standards within a WRIA.

(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, or is not expected to meet applicable water quality standards by the next listing cycle, even after the application of technology-based effluent limitations required by the federal clean water act.

(18) "WRIA" means a water resource inventory area established in chapter 173-500 WAC as it existed on January 1, 1997.

(19) "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 trade the credits for their excess reduction to another source.

(20) "Adaptive management" means the processes and principles designed to modify rules adopted under the forest practices act, and their application based on cooperative research, monitoring, and evaluation, and set out in Appendix L to the forestry module memorandum of agreement, also known as the Forests and Fish Report (1999).

NEW SECTION. Sec. 3. A new section is added to chapter 90.48 RCW to read as follows:

(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 high standards of quality assurance and quality control as prescribed by the department under 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 in compliance with its data quality objectives and other requirements of an approved quality assurance program plan to verify the suspected water quality exceedance.

(2) The department shall coordinate a 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 the data quality assurance and quality control guidelines prescribed by the department under this section. To the extent possible and appropriate, the water quality monitoring network shall include other state agencies, tribes, counties, cities, federal agencies, water-sewer districts, 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. 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) The department shall coordinate the collection of water quality data among state agencies to ensure that monitoring for the purposes of this section is comprehensive without being duplicative, and that state monitoring resources are directed toward filling the most critical information gaps.

(4) The department shall develop a system of water quality standards, data quality objectives, data interpretation guidelines, and data quality assurance and quality control guidelines by December 1, 2002. The water quality standards shall be adopted by rule under RCW 90.48.035 and the administrative procedure act, chapter 34.05 RCW. After issuance, the data quality objectives, data interpretation guidelines, and data quality assurance and quality control guidelines shall be updated periodically to reflect new methods and instrumentation.

(5) After July 1, 2003, 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 data quality assurance and quality control guidelines.

NEW SECTION. Sec. 4. A new section is added to chapter 90.48 RCW to read as follows:

(1) After July 1, 2003, the department shall prepare a revised 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 data quality assurance and quality control guidelines. The list shall include four parts as follows:

(a) Water bodies impaired or threatened by one or more pollutants or unknown cause as defined by 40 C.F.R. Sec. 130.2(d);

(b) Water bodies impaired or threatened by pollution as defined by 40 C.F.R. Sec. 130.2(c) but not impaired by one or more pollutants;

(c) Water bodies for which the federal environmental protection agency has approved or established a total maximum daily load and water quality standards have not yet been attained; and

(d) Water bodies that are impaired, for which implementation of best practicable control technology for point sources and secondary treatment for publicly owned treatment works or controls enforceable by state, territorial, authorized tribal, or federal law or regulation are expected to result in attainment of water quality standards by the next listing cycle. If a water body on this part of the list does not attain water quality standards by the time the list is due to the environmental protection agency, it must be included in part 1 of the list. The list shall be submitted to the federal environmental protection agency at a frequency determined by the agency.

(2) Deletions from the list shall be based on monitoring data of the same quality and rigor as data used for additions to the list. Additions to, and deletions from, the list of water quality limited segments shall be recorded when the list is updated in the next listing cycle.

(3) 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;

(d) Develop responses to the comments received, and provide those responses to those persons who have requested them;

(e) Develop a final list of water quality limited segments and publish a notice of the availability of the final list in the Washington State Register; and

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

NEW SECTION. Sec. 5. A new section is added to chapter 90.48 RCW to read as follows:

(1) No permit may be issued to a new source or to a new discharger, as these terms are defined in section 306 of the federal clean water act and in 40 C.F.R. Secs. 122.2 and 122.29 as of the effective date of this section, if the discharge would cause or contribute to a violation of water quality standards, unless a water clean-up plan as provided in section 8 of this act has been adopted by the department.

(2) This chapter does not 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, rules, regulations, and requirements affecting water quality, solely because a total maximum daily load has not been completed.

(3) This chapter does not prevent any new or expanded activity that may lead to a nonpoint source discharge conducted in compliance with all applicable federal, state, or local laws, rules, regulations, and requirements that protect water quality, solely because a total maximum daily load has not been completed.

Sec. 6. RCW 90.82.060 and 1998 c 247 s 2 are each amended to read as follows:

(1) Planning conducted under this chapter must provide for a process to allow the local citizens within a WRIA or multi-WRIA area to join together in an effort to: (a) Assess the status of the water resources of their WRIA or multi-WRIA area; and (b) determine how best to manage the water resources of the WRIA or multi-WRIA area to balance the competing resource demands for that area within the parameters under RCW 90.82.120.

(2) Watershed planning under this chapter may be initiated for a WRIA only with the concurrence of: (a) All counties within the WRIA; (b) the largest city or town within the WRIA unless the WRIA does not contain a city or town; and (c) the water supply utility obtaining the largest quantity of water from the WRIA. To apply for a grant for organizing the planning unit as provided for under RCW 90.82.040(2)(a), these entities shall designate the entity that will serve as the lead agency for the planning effort and indicate how the planning unit will be staffed.

(3) Watershed planning under this chapter may be initiated for a multi-WRIA area only with the concurrence of: (a) All counties within the multi-WRIA area; (b) the largest city or town in each WRIA unless the WRIA does not contain a city or town; and (c) the water supply utility obtaining the largest quantity of water in each WRIA.

(4) If entities in subsection (2) or (3) of this section decide jointly and unanimously to proceed, they shall invite all tribes with reservation lands within the management area.

(5) The entities in subsection (2) or (3) of this section, including the tribes if they affirmatively accept the invitation, constitute the initiating governments for the purposes of this section.

(6) The organizing grant shall be used to organize the planning unit and to determine the scope of the planning to be conducted. In determining the scope of the planning activities, consideration shall be given to all existing plans and related planning activities. The scope of planning must include water quantity elements as provided in RCW 90.82.070, and may include water quality planning elements as contained in RCW 90.82.090((,)) and section 8 of this act, and habitat elements as contained in RCW 90.82.100((,)) and instream flow elements as contained in RCW 90.82.080. The initiating governments shall work with state government, other local governments within the management area, and affected tribal governments, in developing a planning process. The initiating governments may hold public meetings as deemed necessary to develop a proposed scope of work and a proposed composition of the planning unit. In developing a proposed composition of the planning unit, the initiating governments shall provide for representation of a wide range of water resource interests.

(7) Each state agency with regulatory or other interests in the WRIA or multi-WRIA area to be planned shall assist the local citizens in the planning effort to the greatest extent practicable, recognizing any fiscal limitations. In providing such technical assistance and to facilitate representation on the planning unit, state agencies may organize and agree upon their representation on the planning unit. Except in implementing section 8 of this act, such technical assistance must only be at the request of and to the extent desired by the planning unit conducting such planning. The number of state agency representatives on the planning unit shall be determined by the initiating governments in consultation with the governor's office. The department shall provide the level of assistance and support necessary to ensure the development of water clean-up plans as provided in section 8 of this act.

(8) As used in this section, "lead agency" means the entity that coordinates staff support of its own or of other local governments and receives grants for developing a watershed plan.

Sec. 7. RCW 90.82.090 and 1998 c 247 s 5 are each amended to read as follows:

If the initiating governments choose to include a water quality component, the watershed plan shall include the following elements:

(1) An examination based on existing studies conducted by federal, state, and local agencies of the degree to which legally established water quality standards are being met in the management area;

(2) An examination based on existing studies conducted by federal, state, and local agencies of the causes of water quality violations in the management area, including an examination of information regarding pollutants, point and nonpoint sources of pollution, and pollution-carrying capacities of water bodies in the management area. The analysis shall take into account seasonal stream flow or level variations, natural events, and pollution from natural sources that occurs independent of human activities;

(3) An examination of the legally established characteristic uses of each of the nonmarine bodies of water in the management area;

(4) An examination of any total maximum daily load established for nonmarine bodies of water in the management area, unless a total maximum daily load process has begun in the management area as of the date the watershed planning process is initiated under RCW 90.82.060;

(5) An examination of existing data related to the impact of fresh water on marine water quality;

(6) A recommended approach for implementing the total maximum daily load established for achieving compliance with water quality standards for the nonmarine bodies of water in the management area, unless a total maximum daily load process has begun in the management area as of the date the watershed planning process is initiated under RCW 90.82.060; and

(7) Recommended means of monitoring by appropriate government agencies whether actions taken to implement the approach to bring about improvements in water quality are sufficient to achieve compliance with water quality standards.

((This chapter does not obligate the state to undertake analysis or to develop strategies required under the federal clean water act (33 U.S.C. Sec. 1251 et seq.). This chapter does not authorize any planning unit, lead agency, or local government to adopt water quality standards or total maximum daily loads under the federal clean water act.)) If an initiating government wishes to address the requirements for development of total maximum daily loads under the federal clean water act, the plan developed pursuant to subsections (1) through (7) of this section shall also include the elements of a water clean-up plan identified in section 8 of this act.

NEW SECTION. Sec. 8. A new section is added to chapter 90.82 RCW to read as follows:

(1) After a list of water quality limited segments has been submitted to the federal environmental protection agency as provided in section 4 of this act, the department shall sort the list of water quality limited segments by WRIA.

(2) The department shall work to achieve the attainment of water quality standards by developing water clean-up plans in each of the state's sixty-two WRIAs. In areas where initiating governments have chosen to address water quality, the department shall work with planning groups in developing water clean-up plans. Such plans shall be based on existing water quality plans previously completed in a WRIA, and shall fill whatever gaps are necessary to meet the requirements of this section. Water clean-up plans shall include the following elements:

(a) Identification of water quality limited segments and pollutants found within the WRIA;

(b) Identification of sources of pollutants;

(d) Development of water quality goals:

(i) For the recovery of salmon and any other aquatic species that may be listed or candidates for listing under the federal endangered species act, as approved by the federal fish and wildlife service and the environmental protection agency; and

(ii) For existing and projected land uses identified in comprehensive plans under the growth management act, chapter 36.70A RCW;

(e) Deviation from the water quality standards needed to attain the goals expressed in units of pollutant reduction;

(f) Development of measurable objectives for the control of pollutants that prevent the attainment of the most limiting water quality standards related to attainment of the water quality goals;

(g) Development of an implementation plan that includes:

(i) Demonstration that control measures as proposed under subsection (3) of this section will result in the expeditious reduction of the pollutants preventing attainment of water quality standards;

(ii) Revisions of wastewater discharge permits as necessary to reduce effluent limits;

(iii) Any effluent trading voluntarily entered into that results in meeting or exceeding water quality standards;

(iv) A schedule of implementation actions, including interim milestones;

(v) A budget sufficient to fund implementation of the implementation actions;

(vi) Identification of funding sources, including federal, state, and other sources;

(vii) A monitoring plan; and

(viii) A process for revision of the water clean-up plan.

(3) Measures for the control of nonpoint sources of pollution shall include, but not be limited to, those processes and recommendations found in the department's water quality management plan to control nonpoint source pollution (publication 99-26, as amended). If implementation of measures in this plan would not achieve the reduction of pollutants necessary to attain water quality standards, the department shall develop recommendations, in conjunction with affected interests, for additional actions that should be taken to achieve water quality standards.

(4) A water clean-up plan under this section shall include:

(a) The elements required under subsection (2) of this section;

(b) The elements required under RCW 90.82.090; and

(c) Any total maximum daily loads developed under section 9 of this act. A plan that includes these elements shall be adopted by the department. Projects and control measures identified in adopted plans shall receive first priority for state funding for which they are eligible.

NEW SECTION. Sec. 9. A new section is added to chapter 90.48 RCW to read as follows:

(1) Total maximum daily loads shall be developed when the listing of a water body as water quality limited is caused by one or more point sources of pollutants, or a combination of one or more point sources and one or more nonpoint sources of pollutants. When the listing of a water body as water quality limited is caused exclusively by nonpoint sources, an initiating government may choose to develop a water clean-up plan under section 8 of this act. In developing total maximum daily loads, load allocations for nonpoint sources shall be assigned to categories of nonpoint sources, to tributaries, or to subbasins within a WRIA.

(2) The development of total maximum daily loads for marine waters shall apply only to the control of ongoing point and nonpoint sources of pollutants, and not to contaminated sediments that are regulated under the model toxics control act, chapter 70.105D RCW, and the comprehensive environmental response, compensation, and liability act of 1980 (42 U.S.C. Sec. 9601 et seq.).

(3) Department hearings and other public proceedings to initiate total maximum daily loads shall be held in the town or city nearest to the location of the water quality limited segment in order to facilitate participation by affected persons. 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.

(4) Wasteload allocations should be developed through consensus among those discharging or releasing pollutants into the relevant watershed. If consensus is not achievable, a mediator may be retained at the dischargers' expense to negotiate an allocation. If an agreement on allocations has not been developed within one hundred eighty days from the start of negotiations on allocations, the department shall allocate loads.

(5) 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.

NEW SECTION. Sec. 10. A new section is added to chapter 90.48 RCW to read as follows:

(1) By July 1, 2002, the department shall investigate, develop, and implement a procedure for effluent trading. The procedure shall enable persons discharging or releasing pollutants to enter into contracts or other enforceable agreements with each other, appropriately overseen and administered by the department, to offset or trade quantifiable amounts of pollutants so as to efficiently and effectively attain or maintain water quality standards.

(2) Reductions in pollutant units from amounts or quantities authorized under a total maximum daily load as implemented through a federal clean water act discharge permit or a state wastewater discharge permit, or through nonpoint sources, may be freely exchanged with other persons within the same receiving watershed subject to the procedures and rules of the department.

(3) In developing the mechanisms and procedures required by this section, the department shall not:

(a) Compel or require any person to engage in effluent trading as an alternative to other means or mechanisms to attain or maintain water quality standards; or

(b) Set or determine the price or payment made, if any, in any effluent trade.

(4) The department shall seek any approvals, waivers, or authorizations from the environmental protection agency or other state and federal agencies needed to implement or to facilitate effluent trading to its fullest extent. However, such effluent trading shall not affect or restrict the authority of the department to implement categorical effluent limits or treatment requirements adopted by the department or the federal environmental protection agency, nor shall any effluent trade create any property rights of any sort.

(5) The department shall adopt rules as necessary implementing effluent trading. Such rules shall allow pollutant trading and other procedures to receive any necessary approvals with the minimum of administrative processing consistent with federal and state laws, rules, and regulations.