H-2991.1 _______________________________________________
HOUSE BILL 2722
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State of Washington 57th Legislature 2002 Regular Session
By Representatives McDermott, Ericksen, Rockefeller, Sump, Murray, Kenney, Doumit, Morell, Linville, Upthegrove, Edwards, Jackley, Chase, Schmidt, Benson, Clements, Pflug, Bush and Talcott
Read first time 01/25/2002. Referred to Committee on Natural Resources.
AN ACT Relating to barriers to fish passage; amending RCW 77.55.040, 77.55.070, 77.55.060, and 77.55.080; creating a new section; and repealing RCW 77.55.310 and 77.55.320.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The current laws regarding fish guards, fish screens, and fish bypasses contain inconsistent terms and provisions. The legislature recognizes that these differences are a result of food fish being regulated by the former department of fisheries and game fish being regulated by the former department of wildlife. These two agencies were merged into the department of fish and wildlife in 1993. The existing set of statutes are confusing to read and can produce different results depending on the type of fish that may be passing through the stream at a given time. It is the intent of the legislature to establish a consistent set of provisions for fish guards, fish screens, and fish bypasses that apply in an identical manner to both food fish and game fish.
Sec. 2. RCW 77.55.040 and 1998 c 190 s 85 are each amended to read as follows:
A diversion device used for conducting water from a lake, river, or stream for any purpose shall be equipped with a fish guard, screen, or bypass approved by the director to prevent the passage of fish into the diversion device. The fish guard, screen, or bypass shall be maintained at all times when water is taken into the diversion device. The fish guards, screens, or bypasses shall be installed at places and times prescribed by the director upon thirty days' notice to the owner of the diversion device. Plans for the fish guard, screen, or bypass shall be approved by the director before construction. The installation shall be approved by the director before the diversion of water.
Each day the diversion
device is not equipped with an approved fish guard, screen, or bypass is
a separate offense. If within thirty days after notice to equip a diversion
device the owner fails to do so, the director may ((take possession of))
close the diversion device ((and close the device)) until it is
properly equipped with an approved fish guard, screen, or bypass.
Expenses incurred by the department constitute the value of a lien upon the
diversion device and upon the real and personal property of the owner. Notice
of the lien shall be filed and recorded in the office of the county auditor of
the county in which the action is taken.
Sec. 3. RCW 77.55.070 and 2000 c 107 s 14 are each amended to read as follows:
If the director
determines that a ((fishway or)) fish guard, screen, or bypass
described in RCW 77.55.040 and 77.55.060 ((and in existence on September 1,
1963,)) is inadequate, in addition to other authority granted in this
chapter, the director may remove, relocate, reconstruct, or modify the device,
without cost to the owner. The director shall not materially modify the amount
of flow of water through the device or bypass. After the department has
completed the improvements, the ((fishways and)) fish guards,
screens, and bypasses shall be operated and maintained at the expense of
the owner in accordance with RCW 77.55.040 and 77.55.060.
Sec. 4. RCW 77.55.060 and 1998 c 190 s 86 are each amended to read as follows:
A dam or other
obstruction across or in a stream shall be provided with a durable and
efficient ((fishway)) fish bypass approved by the director.
Plans and specifications shall be provided to the department prior to the
director's approval. The ((fishway)) fish bypass shall be
maintained in an effective condition and continuously supplied with sufficient
water to freely pass fish.
If a person fails to
construct and maintain a ((fishway)) fish bypass or to remove the
dam or obstruction in a manner satisfactory to the director, then within thirty
days after written notice to comply has been served upon the owner, his agent,
or the person in charge, the director may construct a ((fishway)) fish
bypass or remove the dam or obstruction. Expenses incurred by the
department constitute the value of a lien upon the dam or obstruction
and upon the personal property of the person owning the dam or obstruction.
Notice of the lien shall be filed and recorded in the office of the county
auditor of the county in which the dam or obstruction is situated. The lien
may be foreclosed in an action brought in the name of the state.
If, within thirty days
after notice to construct a ((fishway)) fish bypass or remove a
dam or obstruction, the owner, his agent, or the person in charge fails to do
so, the dam or obstruction is a public nuisance and the director may take
possession of the dam or obstruction and destroy it. No liability shall attach
for the destruction.
Sec. 5. RCW 77.55.080 and 1983 1st ex.s. c 46 s 74 are each amended to read as follows:
Before a person
commences construction on a dam or other hydraulic project for which the
director determines that a ((fishway)) fish bypass is
impractical, the person shall at the option of the director:
(1) Convey to the state a fish cultural facility on a site satisfactory to the director and constructed according to plans and specifications approved by the director, and enter into an agreement with the director secured by sufficient bond, to furnish water and electricity, without expense, and funds necessary to operate and maintain the facilities; or
(2) Enter into an agreement with the director secured by sufficient bond to make payments to the state as the director determines are necessary to expand, maintain, and operate additional facilities at existing hatcheries within a reasonable distance of the dam or other hydraulic work to compensate for the damages caused by the dam or other hydraulic work.
(3) A decision of the director under this section is subject to review in the superior court of the state for Thurston county. Each day that a person carries on construction work or operates a dam or hydraulic project without complying with this section is a separate offense.
NEW SECTION. Sec. 6. The following acts or parts of acts are each repealed:
(1) RCW 77.55.310 (Director may modify inadequate fishways and protective devices) and 2001 c 253 s 21, 1980 c 78 s 90, & 1963 c 152 s 1; and
(2) RCW 77.55.320 (Diversion of water--Screen, bypass required) and 2001 c 253 s 48, 1998 c 190 s 122, 1980 c 78 s 89, & 1955 c 36 s 77.16.220.
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