S-1515

AN ACT Relating to lakes management; amending RCW 85.38.010, 36.61.020, 36.61.270, 75.20.100, 90.48.445, and 17.24.051; adding new chapters to Title 90 RCW; creating a new section; and repealing RCW 36.61.115.

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

NEW SECTION. Sec. 1. The legislature finds that the environmental, recreational, and aesthetic values of many of the state's lakes are threatened by eutrophication and other deterioration and that existing governmental authorities are unable to improve and maintain the quality of the state's lakes adequately. It is the purpose of this chapter to allow the creation of a new type of special district authorized to embark on a program of lake improvement and maintenance for the general public's benefit, health, and welfare.

NEW SECTION. Sec. 2. (1) Lake management service areas may be created and provide lake management services and facilities, including facilities and services to: (a) Maintain and restore lakes; (b) enhance water quality; (c) control and maintain water levels; (d) provide fish ladders and other devices to conserve fish and game fish; (e) divert and treat storm water before its disposal in a lake; (f) control agricultural wastes; (g) study lake water quality problems and solutions; (h) clean and maintain ditches and streams entering or leaving a lake; and (i) provide drainage control, storm water control, and surface water control improvements and activities. A lake management service area may take the necessary administrative, engineering, legal, and operational actions associated with its substantive authorities. No lake management service area activities shall adversely affect any existing property or water rights.

(2) A lake management service area is a quasi-municipal corporation possessing the normal authorities of a quasi-municipal corporation including, but not limited to, the authority to: (a) Acquire, purchase, or lease, in its own name, necessary property, property rights, facilities, and equipment; (b) sell or exchange surplus property, property rights, facilities, and equipment; (c) accept funds and property by loan, grant, gift, or otherwise from the United States, the state of Washington, or any other public or private source; (d) hire staff, employees, or services, or use voluntary labor; (e) sue and be sued; (f) enter into contracts, including interlocal contracts and agreements under chapter 39.34 RCW; and (g) cooperate with or join the United States, the state of Washington, or any other public or private entity or person for municipality purposes.

NEW SECTION. Sec. 3. A lake management service area shall be governed by a three‑member governing body, the members of which are elected to three-year staggered terms of office. The provisions of chapter 85.38 RCW relating to the appointing of the initial members of the governing body of a special district, subsequent election of members of the governing body of a special district, and filling of a vacancy, apply to the governing body of a lake management service area.

NEW SECTION. Sec. 4. Elections and franchise rights in a lake management service area shall conform with the provisions of chapter 85.38 RCW relating to the elections and franchise rights in a special district, except that a property owner shall not receive added votes based upon the extent of his or her ownership of land within the service area and the ownership of lake bottom property within the lake management service area shall not grant franchise rights.

NEW SECTION. Sec. 5. The provisions of chapter 85.38 RCW relating to the following matters in special districts apply to lake management service areas:

(1) The procedure to create a special district;

(2) The filing of bonds by members of the governing body;

(3) The adoption of a budget, imposition of special assessments, and imposition of rates and charges by a special district that was created after July 28, 1985, except that liens for special assessments and liens for rates and charges shall not extend to public property and special assessments or rates and charges shall not be imposed on lake bottom property;

(4) Issuing special assessment bonds, refunding special assessment bonds, and creating a special assessment bond guaranty fund;

(5) Limitations on constructing improvements by employees of the special district; and

(6) Annexing contiguous territory, consolidating contiguous special districts, withdrawing areas from a special district that are located in a city or town, transferring territory from one special district to another special district, suspending the operations of a special district, and reactivating a special district that had its operations suspended.

Sec. 6. RCW 85.38.010 and 1991 c 349 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:

(1) "Governing body" means the board of commissioners, board of supervisors, or board of directors of a special district.

(2) "Owner of land" means the record owner of at least a majority ownership interest in a separate and legally created lot or parcel of land, as determined by the records of the county auditor, except that if the lot or parcel has been sold under a real estate contract, the vendee or grantee shall be deemed to be the owner of such land for purposes of authorizing voting rights. It is assumed, unless shown otherwise, that the name appearing as the owner of property on the property tax rolls is the current owner.

(3) "Qualified voter of a special district" means a person who is either: (a) A natural person who is a voter under general state election laws, registered to vote in the state of Washington for a period of not less than thirty days before the election, and the owner of land located in the special district for a period of not less than thirty days before the election; (b) a corporation or partnership that has owned land located in the special district for a period of not less than sixty days before the election; or (c) the state, its agencies or political subdivisions that own land in the special district or lands proposed to be annexed into the special district except that the state, its agencies and political subdivisions shall not be eligible to vote to elect a member of the governing board of a special district.

(4) "Special district" means: (a) A diking district; (b) a drainage district; (c) a diking, drainage, and/or sewerage improvement district; (d) an intercounty diking and drainage district; (e) a consolidated diking district, drainage district, diking improvement district, and/or drainage improvement district; ((or)) (f) a flood control district; or (g) a lake management service area.

(5) "Special district general election" means the election of a special district regularly held on the first Tuesday after the first Monday in February in each even-numbered year at which a member of the special district governing body is regularly elected.

Sec. 7. RCW 36.61.020 and 1987 c 432 s 2 are each amended to read as follows:

Any county may create lake management districts to finance the improvement and maintenance of lakes located within or partially within the boundaries of the county. All or a portion of a lake and the adjacent land areas may be included within one or more lake management districts. More than one lake, or portions of lakes, and the adjacent land areas may be included in a single lake management district. ((~~A lake management district may be created for a period of up to ten years.~~))

Special assessments or rates and charges may be imposed on the property included within a lake management district to finance lake improvement and maintenance activities, including: (1) The control or removal of aquatic plants and vegetation; (2) water quality; (3) the control of water levels; (4) storm water diversion and treatment; (5) agricultural waste control; (6) studying lake water quality problems and solutions; (7) cleaning and maintaining ditches and streams entering or leaving the lake; and (8) the related administrative, engineering, legal, and operational costs, including the costs of creating the lake management district.

Special assessments or rates and charges may be imposed annually on all the land in a lake management district for the duration of the lake management district without a related issuance of lake management district bonds or revenue bonds. Special assessments also may be imposed in the manner of special assessments in a local improvement district with each landowner being given the choice of paying the entire special assessment in one payment, or to paying installments, with lake management district bonds being issued to obtain moneys not derived by the initial full payment of the special assessments, and the installments covering all of the costs related to issuing, selling, and redeeming the lake management district bonds.

Sec. 8. RCW 36.61.270 and 1987 c 432 s 11 are each amended to read as follows:

Whenever rates and charges are to be imposed in a lake management district or whenever a previously approved schedule of rates and charges is to be adjusted, the county legislative authority shall prepare a roll of rates and charges that includes those matters required to be included in a special assessment roll and shall hold a public hearing on the proposed roll of rates and charges as provided under RCW 36.61.120 through 36.61.150 for a special assessment roll. The county legislative authority shall have full jurisdiction and authority to fix, alter, regulate, and control the rates and charges imposed by a lake management district and may classify the rates or charges by any reasonable factor or factors, including benefit, use, front footage, acreage, the extent of improvements on the property, the type of improvements on the property, uses to which the property is put, service to be provided, and any other reasonable factor or factors. The flexibility to establish rates and charges includes the authority to reduce rates and charges on property owned by low-income persons.

Except as provided in this section, the collection of rates and charges, lien status of unpaid rates and charges, and method of foreclosing on such liens shall be subject to the provisions of chapter 36.94 RCW. Public property, including state property, shall be subject to the rates and charges to the same extent that private property is subject to them, except that liens may not be foreclosed on the public property, and the procedure for imposing such rates and charges on state property shall conform with the procedure provided for in chapter 79.44 RCW concerning the imposition of special assessments upon state property. The total amount of rates and charges cannot exceed the cost of lake improvement or maintenance activities proposed to be financed by such rates and charges, as specified in the resolution of intention. Revenue bonds exclusively payable from the rates and charges may be issued by the county under chapter 39.46 RCW.

NEW SECTION. Sec. 9. RCW 36.61.115 (Limitation on special assessments, rates and charges) and 1987 c 432 s 9 are each repealed.

NEW SECTION. Sec. 10. 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. 11. 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. 12. 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. 13. (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 include criteria developed by the department of fish and wildlife under chapter 75.20 RCW for the protection of fish. 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 14 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. 14. (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 13(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 13(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. 15. 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. The permit requirements for mechanical control of aquatic plants shall be satisfied by the applicant if the applicant fulfills the applicable provisions in the "Aquatic Plants and Fish" pamphlet issued by the department of fish and wildlife under RCW 75.20.108.

Sec. 16. RCW 75.20.100 and 1998 c 190 s 87 are each 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 (5)(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)(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.

(6) 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.

(7) 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.

(8) A permit issued under section 12 of this act satisfies the requirements under this section.

(9) 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.

((~~(9)~~)) (10) 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. 17. 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~~)) pest control, ((~~herbicides and surfactants~~)) pesticides and adjuvants 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~~)) aquatic 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~~)) pest control efforts. The director's authority to issue water quality modification permits for activities other than the application of ((~~surfactants~~)) adjuvants and approved ((~~herbicides~~)) pesticides, to control aquatic ((~~noxious weeds~~)) pests, is unaffected by this section.

(3) ((~~As used in this section, "aquatic noxious weed" means an aquatic weed on the state noxious weed list adopted under RCW 17.10.080.~~)) A permit issued under section 12 of this act satisfies the permit requirements under this section.

Sec. 18. 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 12 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. 19. Sections 1 through 5 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 20. Sections 10 through 15 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 21. 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.