[atlas:bill]

AN ACT Relating to mitigating the effects of the aquatic herbicide general permit required as a result of a recent federal court decision; amending RCW 90.48.465; creating a new section; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature finds that the recent federal court of appeals decision in Headwaters, Inc. v. Talent Irrigation District, 243 F.3rd 526 (9th Cir. 2001) imposes a duty to obtain a national pollutant discharge elimination system permit under the clean water act for the application of herbicides to irrigation canals. This duty is also extended to other individuals and organizations that apply herbicides to other waters, where no duty existed before the Talent decision.

The legislature finds that the costs associated with the issuance of the general permit now required by the department of ecology as a result of the federal decision is unfairly burdensome to the affected individuals and organizations. The legislature intends to reduce the burden of the federal decision on those individuals and organizations.

Sec. 2. RCW 90.48.465 and 1998 c 262 s 16 are each amended to read as follows:

(1) The department shall establish annual fees to collect expenses for issuing and administering each class of permits under RCW 90.48.160, 90.48.162, and 90.48.260. An initial fee schedule shall be established by rule ((~~within one year of March 1, 1989, and thereafter the fee schedule shall~~)) and be adjusted no more often than once every two years. This fee schedule shall apply to all permits, regardless of date of issuance, and fees shall be assessed prospectively. All fees charged shall be based on factors relating to the complexity of permit issuance and compliance and may be based on pollutant loading and toxicity and be designed to encourage recycling and the reduction of the quantity of pollutants. Fees shall be established in amounts to fully recover and not to exceed expenses incurred by the department in processing permit applications and modifications, monitoring and evaluating compliance with permits, conducting inspections, securing laboratory analysis of samples taken during inspections, reviewing plans and documents directly related to operations of permittees, overseeing performance of delegated pretreatment programs, and supporting the overhead expenses that are directly related to these activities.

(2) The annual fee paid by a municipality, as defined in 33 U.S.C. Sec. 1362, for all domestic wastewater facility permits issued under RCW 90.48.162 and 90.48.260 shall not exceed the total of a maximum of fifteen cents per month per residence or residential equivalent contributing to the municipality's wastewater system. ((The department shall adopt by rule a schedule of credits for any municipality engaging in a comprehensive monitoring program beyond the requirements imposed by the department, with the credits available for five years from March 1, 1989, and with the total amount of all credits not to exceed fifty thousand dollars in the five-year period.))

(3) The department shall ensure that indirect dischargers do not pay twice for the administrative expense of a permit. Accordingly, administrative expenses for permits issued by a municipality under RCW 90.48.165 are not recoverable by the department.

(4) In establishing fees, the department shall consider the economic impact of fees on small dischargers and the economic impact of fees on public entities required to obtain permits for storm water runoff and shall provide appropriate adjustments.

(5) The fee for an individual permit issued for a dairy farm as defined under chapter 90.64 RCW shall be fifty cents per animal unit up to ((~~one thousand one hundred sixty-seven dollars for fiscal year 1998 and~~)) one thousand two hundred fourteen dollars for fiscal year 1999. The fee for a general permit issued for a dairy farm as defined under chapter 90.64 RCW shall be fifty cents per animal unit up to ((~~eight hundred seventeen dollars for fiscal year 1998 and~~)) eight hundred fifty dollars for fiscal year 1999. Thereafter, these fees may rise in accordance with the fiscal growth factor as provided in chapter 43.135 RCW.

(6) The fee for a general permit and the cost of implementing permit conditions such as monitoring, required solely as a result of the federal court of appeals decision in Headwaters, Inc. v. Talent Irrigation District, 243 F.3rd 526 (9th Cir. 2001), is limited to a maximum fee of three hundred dollars. The department may transfer up to two hundred thousand dollars per fiscal biennium from the state toxics control account to recover fully any other costs of developing, implementing, and monitoring the general permit program established as a result of the Talent decision.

(7) All fees collected under this section shall be deposited in the water quality permit account hereby created in the state treasury. Moneys in the account may be appropriated only for purposes of administering permits under RCW 90.48.160, 90.48.162, and 90.48.260.

((~~(7) Beginning with the biennium ending June 30, 1997,~~)) (8) The department shall present a biennial progress report on the use of moneys from the account to the legislature. The report will be due December 31st of odd-numbered years. The report shall consist of information on fees collected, actual expenses incurred, and anticipated expenses for the current and following fiscal years.

NEW SECTION. Sec. 3. 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.