S-4411

AN ACT Relating to dairy nutrients; amending RCW 90.48.020, 90.48.390, 90.64.150, 90.64.026, 90.64.050, and 90.64.005; adding a new section to chapter 90.64 RCW; creating new sections; providing an expiration date; and declaring an emergency.

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

Sec. 1. RCW 90.48.020 and 1995 c 255 s 7 are each amended to read as follows:

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

(1) "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, individuals or any other entity whatsoever.

((~~Wherever the words~~)) (2) "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~~)) (3) "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~~)) (4) "Department" ((~~is used in this chapter it shall~~)) means the department of ecology.

((~~Whenever the word~~)) (5) "Director" ((~~is used in this chapter it shall~~)) means the director of ecology.

((~~Whenever the words~~)) (6) "Aquatic noxious weed" ((~~are used in this chapter, they have~~)) has the same meaning as prescribed under RCW 17.26.020.

(7) "Dairy farm" means any farm licensed to produce milk under chapter 15.36 RCW.

Sec. 2. RCW 90.48.390 and 1991 sp.s. c 13 s 84 are each amended to read as follows:

The coastal protection fund is established to be used by the department as a revolving fund for carrying out the purposes of restoration of natural resources under this chapter and chapter 90.56 RCW. To this fund there shall be credited penalties, fees, damages, charges received pursuant to the provisions of this chapter and chapter 90.56 RCW, compensation for damages received under this chapter and chapter 90.56 RCW, and an amount equivalent to one cent per gallon from each marine use refund claim under RCW 82.36.330. However, notwithstanding any other provision of law, dairy farm-related penalties received under the provisions of this chapter shall be credited to the dairy nutrient management account as provided in RCW 90.64.150.

Moneys in the fund not needed currently to meet the obligations of the department in the exercise of its powers, duties, and functions under RCW 90.48.142, 90.48.366, 90.48.367, and 90.48.368 shall be deposited with the state treasurer to the credit of the fund.

Sec. 3. RCW 90.64.150 and 1998 c 262 s 15 are each amended to read as follows:

The dairy ((~~waste~~)) nutrient management account is created in the custody of the state treasurer. All receipts from monetary penalties levied pursuant to violations of this chapter and from dairy farm-related violations of chapter 90.48 RCW must be deposited into the account. Expenditures from the account may be used only for the commission to provide grants to local conservation districts for the sole purpose of assisting dairy producers to develop and fully implement dairy nutrient management plans. Only the ((~~chairman~~)) chair of the commission or the ((~~chairman's~~)) chair's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION. Sec. 4. The legislature finds that:

(1) Complying with the laws regarding dairy nutrient management is a burdensome yet laudable task that the dairy farmers of this state have undertaken;

(2) The dairy nutrient management standards and specifications of the natural resources conservation service were the most rigorous in the nation when the dairy nutrient management act was enacted in 1998;

(3) Those standards, as they existed in 1998, continue to be appropriate standards for proper management of dairy nutrients, despite modification by the natural resources conservation service since 1998;

(4) Dairy farmers cannot comply with constantly changing requirements. The uncertainty constant change creates is an unnecessary drain on limited resources; and

(5) If management standards change substantively, there should be a method for all parties concerned with proper dairy nutrient management to consider and implement changes without causing disruption, uncertainty, or an unnecessary drain on resources.

Sec. 5. RCW 90.64.026 and 1998 c 262 s 6 are each amended to read as follows:

(1) Except for those producers who already have a certified dairy nutrient management plan as required under the terms and conditions of an individual or general national pollutant discharge elimination system permit, all dairy producers licensed under chapter 15.36 RCW, regardless of size, shall prepare a dairy nutrient management plan. If at any time a dairy nutrient management plan fails to prevent the discharge of pollutants to waters of the state, it shall be required to be updated.

(2) By November 1, 1998, the conservation commission, in conjunction with the advisory and oversight committee established under section 8 of this act shall develop a document clearly describing the elements that a dairy nutrient management plan must contain to gain local conservation district approval.

(3) In developing the elements that an approved dairy nutrient management plan must contain, the commission may authorize the use of other methods and technologies than those developed by the natural resources conservation service when such alternatives have been evaluated by the advisory and oversight committee. Alternative methods and technologies shall meet the standards and specifications of:

(a) The natural resources conservation service, as those standards and specifications existed on July 1, 1998, and as modified by the geographically based standards developed under RCW 90.64.140; or

(b) A professional engineer with expertise in the area of dairy nutrient management.

(4) In evaluating alternative technologies and methods, the principal objectives of the committee's evaluation shall be determining:

(a) Whether there is a substantial likelihood that, once implemented, the alternative technologies and methods would not violate water quality requirements;

(b) Whether more cost-effective methods can be successfully implemented in some or all categories of dairy operations; and

(c) Whether the technologies and methods approved or provided by the natural resources conservation service for use by confined animal feeding operations are necessarily required for other categories of dairy operations.

In addition, the committee shall encourage the conservation commission and the conservation districts to apply in dairy nutrient management plans technologies and methods that are appropriate to the needs of the specific type of operation and the specific farm site and to avoid imposing requirements that are not necessary for the specific dairy producer to achieve compliance with water quality requirements.

(5) Such plans shall be submitted for approval to the local conservation district where the dairy farm is located, and shall be approved by conservation districts no later than by July 1, 2002. The conservation commission, in conjunction with conservation districts, shall develop a state-wide schedule of plan development and approval to ensure adequate resources are available to have all plans approved by July 1, 2002.

(6) If a dairy producer leases land for dairy production from an owner who has prohibited the development of capital improvements, such as storage lagoons, on the leased property, the dairy producer shall indicate in his or her dairy nutrient management plan that such improvements are prohibited by the landowner and shall describe other methods, such as land application, that will be employed by the dairy producer to manage dairy nutrients.

(7) Notwithstanding the timelines in this section, any dairy farm licensed after September 1, 1998, shall have six months from the date of licensing to develop a dairy nutrient management plan and another eighteen months to fully implement that plan.

(8) If a plan contains the elements identified in subsection (2) of this section, a conservation district shall approve the plan no later than ninety days after receiving the plan. If the plan does not contain the elements identified in subsection (2) of this section, the local conservation district shall notify the dairy producer in writing of modifications needed in the plan no later than ninety days after receiving the plan. The dairy producer shall provide a revised plan that includes the needed modifications within ninety days of the date of the local conservation district notification. If the dairy producer does not agree with, or otherwise takes exception to, the modifications requested by the local conservation district, the dairy producer may initiate the appeals process described in RCW 90.64.028 within thirty days of receiving the letter of notification.

(9) An approved plan shall be certified by a conservation district and a dairy producer when the elements necessary to implement the plan have been constructed or otherwise put in place, and are being used as designed and intended. A certification form shall be developed by the conservation commission for use state-wide and shall provide for a signature by both a conservation district representative and a dairy producer. Certification forms shall be signed by December 31, 2003, and a copy provided to the department for recording in the data base established in RCW 90.64.130.

(10) The ability of dairy producers to comply with the planning requirements of this chapter depends, in many cases, on the availability of federal and state funding to support technical assistance provided by local conservation districts. Dairy producers shall not be held responsible for noncompliance with the planning requirements of this chapter if conservation districts are unable to perform their duties under this chapter because of insufficient funding.

(11) The conservation commission may, after public hearing and due consideration, including comment from the department of ecology, adopt standards and specifications of the natural resources conservation service that were not in existence on July 1, 1998. Producers affected by new standards and specifications have five years from the date the commission adopts the new standards and specifications to comply with the new standards and specifications.

NEW SECTION. Sec. 6. (1) In consultation with the state conservation commission and local conservation districts, the office of financial management shall develop recommendations to provide adequate funding for the dairy nutrient management program established pursuant to chapter 90.64 RCW. The recommendations shall include an identification of need, if any, for additional funding for each of the following purposes: (a) To perform functions required by conservation districts and the state conservation commission; (b) to provide technical assistance for development of plans; and (c) for cost-share moneys for implementation of the plans based on fifty percent of the eligible costs to be derived from public sources. The recommendations shall be for the amount of funding required each fiscal year for these purposes assuming that the deadlines established in chapter 262, Laws of 1998 will be met.

(2) The office of financial management shall submit its written recommendations to the co-chief clerks of the house of representatives and the secretary of the senate before December 20, 2000.

NEW SECTION. Sec. 7. The legislature finds that:

(1) Dairy nutrient management involves the knowledge of many areas and the possession of many skills besides engineering;

(2) While engineering is important to a correctly designed system, it is only part of the necessary skills, specialized knowledge, and considerations required to create proper dairy nutrient management; and

(3) Trained technicians, with the help of established technical manuals and guidelines, and working in consultation with a professional engineer when appropriate, can design and implement proper dairy nutrient management systems.

NEW SECTION. Sec. 8. A new section is added to chapter 90.64 RCW to read as follows:

(1) Work carried out by technical assistance teams in order to comply with this chapter meets the requirements of chapter 18.43 RCW. Professional engineers may work in conjunction with technicians and need not have direct supervision over technicians in implementing this chapter.

(2) The provisions of this section apply to all dairy nutrient management plans developed under this chapter, whether developed prior to or after the effective date of this section.

NEW SECTION. Sec. 9. The legislature finds that substantial progress has been made in implementing the dairy nutrient management act since its enactment in 1998. Though the involved agencies and interest groups are cooperatively working to meet the deadlines established in that legislation, insufficiency of funding or unexpected obstacles, if not quickly remedied, will cause a delay in the implementation of the legislation and noncompliance with established deadlines.

The purpose of section 10 of this act is to combine, for a limited duration, the advisory and oversight committee with the dairy nutrient management task force that includes legislative participation to provide continuity to monitoring and problem-solving efforts.

NEW SECTION. Sec. 10. (1) A dairy nutrient management task force is reestablished. The task force shall be comprised of up to fourteen members, appointed as follows:

(a) Two members of the house of representatives, one from each major caucus, who were appointed by the co-speakers of the house of representatives in accordance with chapter 262, Laws of 1999, and who served on the original task force;

(b) Two members of the senate, one from each major caucus, who were appointed by the president of the senate in accordance with chapter 262, Laws of 1999, and who served on the original task force;

(d) A representative of the state conservation commission, appointed by its executive secretary;

(e) A representative of local conservation districts, appointed by the president of a state-wide association of conservation districts;

(f) Three active dairy farmers or representatives of dairy farmers, appointed by a state-wide organization representing dairy farmers in the state, who shall represent the different regions and different sizes of dairy operations;

(g) A representative of an environmental organization with familiarity and expertise in water quality issues who was appointed to the dairy nutrient management task force by the co-speakers of the house of representatives and the president of the senate in accordance with chapter 262, Laws of 1999;

(h) A representative of shellfish growers, appointed by the president of an association of coastal shellfish growers; and

(i) In addition to other members appointed under this subsection (1) the following shall be invited to participate as nonvoting members:

(i) A representative of the federal natural resource conservation service appointed by the state conservationist;

(ii) A representative of the federal environmental protection agency appointed by the regional director of the environmental protection agency;

(iii) A representative of local health districts appointed by the president of a state-wide association of local health districts; and

(iv) A representative of the office of financial management.

(2) The entity that originally appointed members to the task force may change the appointment or appoint a successor.

(3) The task force shall meet two times per year, or more if necessary, to monitor the progress and provide oversight of the dairy nutrient management program administered by the department of ecology, the conservation commission, and local conservation districts. The task force shall include but not be limited to examination of the following topics:

(a) Determining whether the necessary progress is being attained so that deadlines established in chapter 262, Laws of 1998, for the development, approval, implementation, and final certification of dairy nutrient management plans will be achieved;

(b) Better assurance of consistency in interpretations between staff that conduct inspections, and between inspectors and staff that design and approve dairy nutrient management plans;

(d) Clarification of what constitutes a violation, including a review of the federal environmental protection agency guidance manual, and whether there must be an actual discharge and/or exceedance of state water quality standards;

(e) Clarification as to the circumstances under which dairy operations are responsible to control flood waters arising from outside of the dairy operation to prevent mixing with dairy nutrients including flood waters that arise during major flood events;

(f) A review of materials provided by state agencies to dairy farmers regarding dairy nutrient management inspections;

(g) Reviewing changes in any standards used in the development and approval of dairy nutrient management plans;

(h) Monitoring the development of and reviewing recommendations for adequate funding for the various components of the program; and

(i) Resolution of the conflict between the state public records laws and federal privacy laws in regards to processing of requests for dairy nutrient management plans when requests are submitted to staff that operate under different directives but share common office space.

(4) By December 10th of each year, the task force shall:

(a) Provide recommendations to the department of ecology, to the conservation commission, and to local conservation districts for improvements in the implementation of the dairy nutrient management program; and

(b) Provide recommendations and proposed legislation to the legislature containing statutory changes to clarify and improve the operations of various facets of the program.

(5) The task force shall convene as soon as possible upon appointment of its members. The task force shall elect a chair or co-chairs from among the legislative members and adopt rules for conducting the business of the task force. Staff support for the task force shall be provided by the department of ecology.

(6) This section expires June 30, 2004.

Sec. 11. RCW 90.64.050 and 1998 c 262 s 12 are each amended to read as follows:

(1) The department has the following duties:

(a) Identify existing or substantial potential water quality problems resulting from dairy farms through implementation of the inspection program in RCW 90.64.023;

(b) Inspect a dairy farm upon the request of a dairy producer;

(d) Determine if a dairy-related water quality problem requires immediate corrective action under the Washington state water pollution control laws, chapter 90.48 RCW, or the Washington state water quality standards adopted under chapter 90.48 RCW. The department shall maintain the lead enforcement responsibility;

(e) Administer and enforce national pollutant discharge elimination system permits for operators of concentrated dairy animal feeding operations, where required by federal regulations and state laws or upon request of a dairy producer;

(f) Participate on the advisory and oversight committee;

(g) Encourage communication and cooperation between local department personnel and the appropriate conservation district personnel;

(h) Require the use of dairy nutrient management plans as required under this chapter for entities required to plan under this chapter; and

(i) Provide to the commission and the advisory and oversight committee an annual report of dairy farm inspection and enforcement activities.

(2) The department may not delegate its responsibilities in enforcement.

Sec. 12. RCW 90.64.005 and 1998 c 262 s 1 are each amended to read as follows:

The legislature finds that there is a need to establish a clear and understandable process that provides for the proper and effective management of dairy nutrients that affect the quality of surface or ground waters in the state of Washington. The legislature finds that there is a need for a program that will provide a stable and predictable business climate upon which dairy farms may base future investment decisions.

The legislature finds that federal regulations require a permit program for dairies with over seven hundred head of mature cows and, other specified dairy farms that directly discharge into waters or are otherwise significant contributors of pollution. The legislature finds that significant work has been ongoing over a period of time and that the intent of this chapter is to take the consensus that has been developed and place it into statutory form.

It is also the intent of this chapter to establish an inspection and technical assistance program for dairy farms to address the discharge of pollution to surface and ground waters of the state that will lead to water quality compliance by the industry. A further purpose is to create a balanced program involving technical assistance, regulation, and enforcement with coordination and oversight of the program by a committee composed of industry, agency, and other representatives. Furthermore, it is the objective of this chapter to maintain the administration of the water quality program as it relates to dairy operations at the state level.

It is also the intent of this chapter to recognize the existing working relationships between conservation districts, the conservation commission, and the department of ecology in protecting water quality of the state. A further purpose of this chapter is to provide statutory recognition of the coordination of the functions of conservation districts, the conservation commission, and the department of ecology pertaining to development of dairy ((~~waste~~)) nutrient management plans for the protection of water quality.

NEW SECTION. Sec. 13. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.