AN ACT Relating to
hydraulic permits; amending RCW 77.55.100, 77.55.110, 77.55.170, and 77.55.220;
adding new sections to chapter 77.55 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. The legislature finds
that hydraulic project approvals should ensure that fish life is properly
protected, but conditions attached to the approval of these permits must
reasonably relate to the potential harm that the projects may produce. The
legislature is particularly concerned over the current overlap of agency
jurisdiction regarding storm water projects, and believes that there is an
immediate need to address this issue to ensure that project applicants are not
given conflicting directions over project design. Requiring a major redesign
of a project results in major delays, produces exponentially rising costs for
both public and private project applicants, and frequently produces only
marginal benefits for fish.
The legislature
recognizes that the department of ecology is primarily responsible for the
approval of storm water projects. The legislature believes that once the
department of ecology approves a proposed storm water project, it is
inappropriate for the department of fish and wildlife to require a major
redesign of that project in order for the applicant to obtain hydraulic project
approval. The legislature further believes that it is more appropriate for the
department of fish and wildlife to defer the design elements of a storm water
project to the department of ecology and focus its own efforts on determining
reasonable mitigation or conditions for the project based upon the project's
potential harm to fish. It is the intent of the legislature to restore some
balance over conditions attached to hydraulic permits, and to minimize
overlapping state regulatory authority regarding storm water projects in order to
reduce waste in both time and money while still providing ample protection for
fish life.
Sec. 2. RCW 77.55.100 and 2000 c
107 s 16 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 or
unreasonably conditioned.
(2)(a) 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. The permit must contain provisions
allowing for minor modifications to the plans and specifications without
requiring reissuance of the permit.
(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.
(c) The forty-five day
requirement shall be suspended if:
(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 77.55.110, "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 77.55.110.
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) For the purposes of
this section and RCW 77.55.110, "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) 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. 3. RCW 77.55.110 and 1998 c
190 s 88 are each amended to read as follows:
In the event that any
person or government agency desires to construct any form of hydraulic project
or other work that diverts water for agricultural irrigation or stock watering
purposes, 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, and when such diversion or streambank stabilization will use,
divert, obstruct, or change the natural flow or bed of any river or stream or
will utilize any waters of the state or materials from the stream beds, the
person or government agency shall, before commencing construction or work
thereon and to ensure the proper protection of fish life, secure a written
approval from the department as to the adequacy of the means proposed for the
protection of fish life. This approval shall not be unreasonably withheld or
unreasonably conditioned. ((Except as provided in RCW 75.20.1001,))
The department shall grant or deny the approval 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. The permit must contain provisions
allowing for minor modifications to the plans and specifications without
requiring reissuance of the permit. The applicant may document receipt of
application by filing in person or by registered mail. A complete application
for an approval shall contain general plans for the overall project, complete
plans and specifications of the proposed construction or work within ordinary
high water line, and complete plans and specifications for the proper
protection of fish life. The forty-five day requirement shall be suspended if
(1) 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; (2) the site is physically inaccessible for inspection; or (3) 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.
An approval shall
remain in effect without need for periodic renewal for projects that divert
water for agricultural irrigation or stock watering purposes and that involve
seasonal construction or other work. Approval for streambank stabilization
projects shall remain in effect without need for periodic renewal if the
problem causing the need for the streambank stabilization occurs on an annual
or more frequent basis. The permittee must notify the appropriate agency
before commencing the construction or other work within the area covered by the
approval.
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. Issuance, denial,
conditioning, or modification shall be appealable to the hydraulic appeals
board established in RCW 43.21B.005 within thirty days of the notice of
decision. The burden shall be upon the department to show that the denial or
conditioning of an approval is solely aimed at the protection of fish life.
The department may,
after consultation with the permittee, modify an approval due to changed
conditions. The modifications shall become effective unless appealed to the
hydraulic appeals board within thirty days from the notice of the proposed
modification. The burden is on the department to show that changed conditions
warrant the modification in order to protect fish life.
A permittee may request
modification of an approval due to changed conditions. The request shall be
processed within forty-five calendar days of receipt of the written request. A
decision by the department may be appealed to the hydraulic appeals board
within thirty days of the notice of the decision. The burden is on the
permittee to show that changed conditions warrant the requested modification
and that such modification will not impair fish life.
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
shall be reduced to writing within thirty days and complied with as provided
for in this section.
For purposes of this
chapter, "streambank stabilization" shall include but not be limited
to log and debris removal, bank protection (including riprap, jetties, and
groins), gravel removal and erosion control.
NEW SECTION. Sec.
4. A new section is added
to chapter 77.55 RCW to read as follows:
(1) Notwithstanding any
other provision of this chapter, all hydraulic project approvals related to
storm water discharges must follow the provisions established in this section.
(2) Hydraulic project
approvals issued in locations covered by a national pollution discharge
elimination system municipal storm water general permit may not be conditioned
or denied for water quality or quantity impacts arising from storm water
discharges. A hydraulic project approval is required only for the actual
construction of any storm water outfall or associated structures pursuant to
this chapter.
(3)(a) In locations not
covered by a national pollution discharge elimination system municipal storm
water general permit, the department may issue hydraulic project approvals that
contain provisions that protect fish life from adverse effects, such as scouring
or erosion of the bed of the water body, resulting from the direct hydraulic
impacts of the discharge.
(b) Prior to the
issuance of a hydraulic project approval issued under this subsection (3), the
department must:
(i) Make a finding that
the discharge from the outfall will cause harmful effects to fish life;
(ii) Transmit the
findings to the applicant and to the city or county where the project is being
proposed; and
(iii) Allow the
applicant an opportunity to use local ordinances or other mechanisms to avoid
the adverse effects resulting from the direct hydraulic discharge. The
forty-five day requirement for hydraulic project approval issuance pursuant to
RCW 77.55.100 is suspended during the time period the department is meeting the
requirements of this subsection (3)(b).
(c) After following the
procedures set forth in (b) of this subsection, the department may issue a
hydraulic project approval that prescribes the discharge rates from an outfall
structure that will prevent adverse effects to the bed or flow of the
waterway. The department may recommend, but not specify, the measures required
to meet these discharge rates. The department may not require changes to the
project design above the mean higher high water mark of marine waters, or the ordinary
high water mark of fresh waters of the state. Nothing in this section alters
any authority the department may have to regulate other types of projects under
this chapter.
NEW SECTION. Sec.
5. A new section is added to
chapter 77.55 RCW to read as follows:
Conditions imposed upon
hydraulic project approvals must be reasonably related to the project. The
conditions must ensure that the project provides proper protection for fish
life, but the department may not impose conditions that attempt to optimize
conditions for fish life that are out of proportion to the impact of the
proposed project.
Sec. 6. RCW 77.55.170 and 2000 c
107 s 20 are each amended to read as follows:
(1) There is hereby
created within the environmental hearings office under RCW 43.21B.005 the
hydraulic appeals board of the state of Washington.
(2) The hydraulic
appeals board shall consist of ((three)) six members: The
director of the department of ecology or the director's designee, the director
of the department of agriculture or the director's designee, ((and)) the
director or the director's designee of the department whose action is appealed
under subsection (6) of this section, and three local government members. One
of the local government members must be appointed by the Washington state
association of counties, one of the local government members must be appointed
by the association of Washington cities, and one of the local government
members must be appointed by the Washington public ports association. The
local government members serve at the pleasure of their respective associations.
A decision must be agreed to by at least ((two)) four members of
the board to be final.
(3) The board may adopt
rules necessary for the conduct of its powers and duties or for transacting
other official business.
(4) The board shall
make findings of fact and prepare a written decision in each case decided by
it, and that finding and decision shall be effective upon being signed by ((two))
four or more board members and upon being filed at the hydraulic appeals
board's principal office, and shall be open to public inspection at all
reasonable times.
(5) The board has
exclusive jurisdiction to hear appeals arising from the approval, denial,
conditioning, or modification of a hydraulic approval issued by the
department: (a) Under the authority granted in RCW 77.55.110 for the diversion
of water for agricultural irrigation or stock watering purposes or when
associated with streambank stabilization to protect farm and agricultural land
as defined in RCW 84.34.020; or (b) under the authority granted in RCW
77.55.230 for off-site mitigation proposals.
(6)(a) Any person
aggrieved by the approval, denial, conditioning, or modification of a hydraulic
approval pursuant to RCW 77.55.110 may seek review from the board by filing a
request for the same within thirty days of notice of the approval, denial,
conditioning, or modification of such approval.
(b) The review
proceedings authorized in (a) of this subsection are subject to the provisions
of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings.
Sec. 7. RCW 77.55.220 and 1996 c
192 s 2 are each amended to read as follows:
(1) The definitions
in this subsection apply throughout this section unless the context clearly
requires otherwise.
(a)
"Marina" means a public or private facility providing boat moorage
space, fuel, or commercial services. Commercial services include but are not
limited to overnight or live-aboard boating accommodations.
(b) "Marine
terminal" means a public or private commercial wharf located in the
navigable water of the state and used, or intended to be used, as a port or
facility for the storing, handling, transferring, or transporting of goods to
and from vessels.
(2) For a marina or
marine terminal in existence on June 6, 1996, or a marina or marine
terminal that has received a hydraulic project approval for its initial
construction, a renewable, five-year hydraulic project approval shall be
issued, upon request, for regular maintenance activities of the marina or
marine terminal.
(3) Upon construction
of a new marina or marine terminal that has received hydraulic project
approval, a renewable, five-year hydraulic project approval shall be issued,
upon request, for regular maintenance activities of the marina or marine
terminal.
(4) For the purposes of
this section, regular maintenance activities are only those activities
necessary to restore the marina or marine terminal to the conditions
approved in the initial hydraulic project approval. These activities may
include, but are not limited to, dredging, piling replacement, and float
replacement.
(5) The
five-year permit must include a requirement that a fourteen-day notice be given
to the department before regular maintenance activities begin.
