[atlas:bill]

AN ACT Relating to administration of hydraulic project approval; amending RCW 77.15.300, 77.12.170, and 43.135.055; adding new sections to chapter 77.55 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. The legislature finds that the department of fish and wildlife issues thousands of hydraulic project approvals each year at a substantial commitment of government resources for individual permitting review and writing. The legislature recognizes the importance of such individual approval processes to ensure proper protection of fish life and reasonable conditioning for hydraulic project approval decisions. However, the legislature also recognizes that certain subjects, such as small scale mining which is addressed by RCW 77.55.270, can be more effectively addressed by pamphlets that describe general rules which, if followed, will ensure proper protection of fish life and lessen the burden on applicants and allow the department to address its significant responsibilities. The legislature also finds that a streamlined approval process for low-risk projects should also provide the department of fish and wildlife with the flexibility necessary to ensure that mitigation is allowed to offset potential significant cumulative impacts to fish within a region. The legislature does not seek to alter the scope of the department's existing authority regarding what activities are "hydraulic projects" or the department's existing obligation to regulate solely for the protection of fish life. The legislature, however, adopts this act to authorize and encourage the department to address appropriate, defined activities by rules.

The legislature finds that hydraulic project approvals required under chapter 77.55 RCW are currently processed by the department of fish and wildlife at no cost to the applicant. The work necessary to process these applications ranges from a simple review to an extensive negotiated mitigation, and may result in an administrative appeal if a hydraulic project approvals application is denied or conditioned.

The legislature finds that the department of fish and wildlife should be authorized to charge a fee for processing and issuing decisions on hydraulic project approvals applications in order to defray the cost incurred by the department. The fee system will be based on the scale and complexity of the proposed project or activity, and whether the application is an original or a time extension, renewal, or alteration. Fish habitat enhancement projects conducted under RCW 77.55.290 are exempt.

NEW SECTION. Sec. 2. A new section is added to chapter 77.55 RCW to read as follows:

(1) As an alternative to requiring and issuing individual hydraulic project approvals under RCW 77.55.100, 77.55.110, and 77.55.200, the department may adopt rules that describe approved and disapproved time, manner, locations, methods, or other conditions for conducting hydraulic projects or 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. The conditions for approval or disapproval shall be reasonably necessary to protection of fish life. The rules shall:

(a) Describe the time, manner, locations, methods, or other conditions under which the described activity is approved;

(b) Describe the activity that is exempt from individual hydraulic project approval, if conducted in conformance with the rules;

(c) Be published in pamphlets, which may provide other reasonably necessary information or educational materials designed to aid compliance with the approved time, manner, and methods provided by rule; and

(d) Be provided by the department for free or, when determined by the fish and wildlife commission, for a fee that shall reasonably reflect the cost of publication, preparation, and distribution of the pamphlet.

(2) Rules adopted under this section may require possession of the pamphlet at the hydraulic project activity site or while conducting the activity. The rules must describe an application process that identifies the specific location of the project and any other information deemed necessary for review of the permit. The rules must contain sufficient detail to ensure that they are enforceable. The rules shall be enforced under RCW 77.15.300.

(3) In adopting rules to implement this section, the department shall ensure that this alternative hydraulic project approval is only available for low-risk permit approval requests for which there are predictable mitigation measures, and that complex projects, or projects that generally require site-specific mitigation measures, will continue to undergo individual hydraulic project approval. The department may slightly vary the conditions for a particular pamphlet approval by region to ensure that activities will not result in significant cumulative impacts to fish within that region. The rules must also include a description of the method that the department will use to track, monitor, and evaluate the projects approved by this alternative process. The department must also develop a process for conducting compliance inspections on a random basis to ensure that the program is effective. The fish and wildlife commission shall provide for public review and comment of any candidates for the pamphlet type of approval before committing to final selection.

(4) By September 1, 2002, the department of fish and wildlife must establish an advisory committee that includes representatives of local governments, environmental groups, business groups, and other stakeholder groups to assist in the development and implementation of the alternative permit program. The advisory committee must also make recommendations on additional mechanisms that might be used to create administrative efficiencies while maintaining the effectiveness of the hydraulic project approval program as a whole, such as training, workload allocation, and electronic permitting, as well as exploring the need for new resources for the program. The advisory committee may also make recommendations regarding the levels of any fees that the department is considering establishing pursuant to section 4 of this act.

(5) The department of fish and wildlife shall report to the appropriate legislative committees by January 1, 2006, on the number and type of alternative permit approvals granted under this section. The report shall include information regarding how resources that would have been used to process these alternative permits as individual permits were shifted to more complex projects. The department must send a final report to the appropriate legislative committees by January 1, 2004, that includes the number and type of alternative permit approvals granted under this section, information regarding how resources that would have been used to process alternative permits as individual permits were shifted to complex projects, and any recommendations developed under subsection (4) of this section.

Sec. 3. RCW 77.15.300 and 2000 c 107 s 239 are each amended to read as follows:

(1) A person is guilty of unlawfully undertaking hydraulic project activities if the person:

(a) Constructs any form of hydraulic project or performs other work on a hydraulic project and((:

~~(a)~~)) fails to have a hydraulic project approval required under chapter 77.55 RCW for such construction or work; ((or))

(b) Violates any requirements or conditions of the hydraulic project approval for such construction or work; or

(c) Violates any rule adopted under RCW 77.55.150, 77.55.270, or section 2 of this act that identifies the time, manner, locations, methods, or other conditions under which an activity is approved or not approved.

(2) Unlawfully undertaking hydraulic project activities is a gross misdemeanor.

NEW SECTION. Sec. 4. A new section is added to chapter 77.55 RCW to read as follows:

(1) The department may charge a fee for processing and issuing decisions on hydraulic project approvals applications. The fee must be based on the scale and complexity of the project. By July 31, 2003, the commission, in collaboration with interested and affected parties, must adopt rules that set forth the fee criteria and amount for these various categories of approvals. The criteria and amounts must be based on a workload analysis conducted by the department as part of the rule development process. The fee criteria may include the capital cost of the project.

(2) Habitat enhancement projects conducted pursuant to RCW 77.55.290 are exempted from fees.

(3) Revenue generated by these fees must be dedicated to fund hydraulic project approvals processing and issuing decisions conducted by the department.

(4) A fee established under this section is exempt from the fee restriction provisions found under RCW 43.135.055.

Sec. 5. RCW 77.12.170 and 2001 c 253 s 15 are each amended to read as follows:

(1) There is established in the state treasury the state wildlife fund which consists of moneys received from:

(a) Rentals or concessions of the department;

(b) The sale of real or personal property held for department purposes;

(c) The sale of licenses, permits, tags, and stamps required by chapter 77.32 RCW and RCW 77.65.490, except annual resident adult saltwater and all shellfish licenses, which shall be deposited into the state general fund;

(d) Fees for informational materials published by the department;

(e) Fees for personalized vehicle license plates as provided in chapter 46.16 RCW;

(f) Articles or wildlife sold by the director under this title;

(g) Compensation for damage to department property or wildlife losses or contributions, gifts, or grants received under RCW 77.12.320 or 77.32.380;

(h) Excise tax on anadromous game fish collected under chapter 82.27 RCW;

(i) The sale of personal property seized by the department for fish, shellfish, or wildlife violations; ((~~and~~))

(j) The department's share of revenues from auctions and raffles authorized by the commission; and

(k) Fees for processing and issuing decisions for hydraulic project approvals conducted under chapter 77.55 RCW.

(2) State and county officers receiving any moneys listed in subsection (1) of this section shall deposit them in the state treasury to be credited to the state wildlife fund.

Sec. 6. RCW 43.135.055 and 2001 c 314 s 19 are each amended to read as follows:

(1) No fee may increase in any fiscal year by a percentage in excess of the fiscal growth factor for that fiscal year without prior legislative approval.

(2) This section does not apply to an assessment made by an agricultural commodity commission or board created by state statute or created under a marketing agreement or order under chapter 15.65 or 15.66 RCW, or to the forest products commission, if the assessment is approved by referendum in accordance with the provisions of the statutes creating the commission or board or chapter 15.65 or 15.66 RCW for approving such assessments.

(3) This section does not apply to fees charged by the department of fish and wildlife to process hydraulic project approvals applications under section 4 of this act.