5969-S AMS SWEC S2574.1

SSB 5969 - S AMD 237

By Senators Swecker, Haugen

ADOPTED 03/19/2003

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The legislature finds that counties have been given the authority to designate agricultural lands of long-term commercial significance and that such lands are protected as a matter of state law. The legislature finds that counties have also been given the authority to designate fish habitat and that these areas are to be protected as a matter of state law. In addition, the legislature finds that the department of fish and wildlife has been granted authority to protect fish habitat in streams.

The legislature finds that several fish habitat restoration processes have been established for the specific purpose of developing plans acceptable to the local communities to restore fish habitat and that several millions of dollars of public funds have been dedicated to projects supported by the local community, including many in Skagit county.

The legislature finds that instead of using fish habitat restoration processes, the department of fish and wildlife has attempted in Skagit county to use regulatory statutes that are limited to the protection of fish habitat. However, these regulatory statutes do not require the restoration or enhancement of habitat.

The legislature finds that historical interpretations by the agency have changed without a corresponding change in the underlying statute. Further, the term "protection" has been determined to be equivalent to a no net loss standard in the administrative code pertaining to hydraulic project approvals. Likewise, the legislature finds that the protection requirement for agricultural land designated as having long- term commercial significance has been interpreted by the state supreme court in a similar fashion of no reduction and no net loss.

The legislature further finds that for over fifty years that fishway statutes have been in effect, they have not been applied to tide gates on agricultural drainage facilities.

The legislature finds that a collaborative process to examine reasonable and feasible alternatives to enhance tidal fish habitat should be used to focus and expedite efforts where there is a gain in tidal fish habitat without harming designated agricultural lands. The legislature also finds that pilot projects may be needed to test creative solutions to achieve the dual goals of enhancing tidal fish habitat while protecting designated agricultural lands.

NEW SECTION. Sec. 2. The purposes of this act are:

(1) To protect lands designated by the county as agricultural land of long-term commercial significance from the effects of saltwater intrusion and diminishment of drainage capability for drainage infrastructure, including flood gates, pump stations, ditches, and tide gates;

(2) To require examination of opportunities to enhance tidal fish habitat on hundreds of acres of publicly owned land while maintaining habitat for migratory birds and that opportunities on publicly owned lands outside the dikes be considered first; and

(3) To allow tide gates located on bona fide streams to proceed through a fish habitat restoration planning process to find opportunities to use fish habitat while avoiding harm to existing land uses.

NEW SECTION. Sec. 3. A new section is added to chapter 77.55 RCW to read as follows:

(1) From funds appropriated to the department of fish and wildlife for salmon restoration activities, the fish and wildlife commission, in coordination with the Skagit county legislative authority and diking and drainage district commissioners, and local landowners, shall establish the Skagit tidal fish habitat pilot project to jointly develop a strategy and to propose projects to enhance tidal fish habitat and address the management, operation, and maintenance of tide gates on streams in Skagit county while assuring no net loss of agricultural lands or their productivity. The strategy and proposed projects must be submitted to the appropriate standing committees of the legislature by December 1, 2004. The strategy must consider the following elements:

(a) An inventory of existing tide gates located on bona fide streams in Skagit county. The inventory must include location, age, type, and maintenance history of the tide gate, and other factors as determined by the commission, the county, diking and drainage districts, and local landowners;

(b) An assessment of the role of tide gates located on bona fide streams in the Skagit county; the role of tidal fish habitat for various life stages of salmon; the quantity and characterization of tidal fish habitat currently accessible to fish; the quantity and characterization of the present tidal fish habitat created at the time the dikes and outlets were constructed; the quantity of potential tidal fish habitat on public lands and alternatives to enhance this habitat; the effects of salt water intrusion on agricultural land including the effects of backfeeding of salt water through the underground drainage system; the role of tide gates in drainage systems including relieving excess water from saturated soil and providing reservoir functions between tides; the effect of saturated soils on production of crops; the characteristics of properly functioning tidal fish habitat; the description of agricultural lands designated by the county as having long-term commercial significance and the effect of that designation; the description and identification of natural water courses and the effect of that designation; and the economic impacts to existing land uses for various alternatives for tide gate alteration; and

(c) A long-term proposal for fish habitat enhancement to meet the two goals of salmon recovery and no net loss of designated agricultural lands. The fish and wildlife commission, the Skagit county legislative authority, and diking and drainage district commissioners shall jointly convene a work group of interested parties, including local landowners, tribal councilmembers, local governments, federal fishery agencies, diking and drainage districts, and representatives of the local lead entity under RCW 77.85.050, to develop the strategy and proposed projects, based on the inventory and assessment under (a) and (b) of this subsection. Legislators shall be appointed to the work group, with an equal number from each of the four major caucuses in the house of representatives and the senate as determined by the speaker of the house of representatives and the president of the senate. The proposal shall include methods to increase fish passage and enhance tidal habitat on public lands, voluntary methods to increase fish passage on private lands, a priority list of fish passage projects on bona fide streams, and recommendations for funding of high priority projects.

(2) The strategy shall proceed in four phases as follows:

(a) Examining opportunities and proposing projects for tidal fish habitat improvements on public land outside the dike;

(b) Examining opportunities and proposing projects for tidal fish habitat improvements on public land inside the dike;

(c) Examining opportunities and proposing projects for tidal fish habitat improvements on areas that have bona fide streams; and

(d) Examining voluntary opportunities for tidal fish habitat improvements where there are no bona fide streams.

(3) The department of fish and wildlife may not require fish passage under RCW 77.55.060 or as a condition of hydraulic project approval for maintenance, improvement, or replacement of agricultural drainage systems under this chapter unless the condition is consistent with the strategy developed under this section and the strategy has been approved by the legislature.

(4) Any condition requiring fish passage in an existing hydraulic project approval issued for a tide gate in Skagit county under this chapter is stayed unless the condition is consistent with the strategy developed under this section and the strategy has been approved by the legislature.

(5) For the purpose of this section, "stream" or "bona fide stream" means the Skagit river, the Samish river, Carpenter creek, and Colony creek."

SSB 5969 - S AMD 237

By Senators Swecker, Haugen

ADOPTED 03/19/2003

On page 1, line 1 of the title, after "county;" strike the remainder of the title and insert "adding a new section to chapter 77.55 RCW; and creating new sections."

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