BILL REQ. #:  H-0906.2 

Read first time 02/04/2003.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to implementing the federal permit requirements for municipal separate storm sewer system permits; adding new sections to chapter 90.48 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 municipal separate storm sewer system permits are required for certain municipalities under the federal water pollution control act. While these programs provide numerous environmental and public health benefits, they also burden municipalities and their businesses and citizens with many costs and liabilities.
     The legislature further finds that municipal separate storm sewer systems are distinct from other storm sewer systems such as industrial storm sewer systems and construction site storm water disposal systems because they consist of complex, widely dispersed conveyance networks that drain public roads and other key elements of infrastructure; include numerous inlets and outfalls that can be difficult to locate and maintain; and intermittently and unpredictably receive large volumes of diffuse storm water that may be polluted by a wide variety of substances directly or indirectly produced by various activities of the public at large. The legislature also finds it is exceedingly difficult to predict, sample, identify the source of, and control pollutants that may contribute to the contamination of storm water discharged through municipal separate storm sewer systems.
     Therefore, the legislature sets forth criteria in this act for development of municipal separate storm sewer system permits under the state's delegated authority to administer the federal municipal storm sewer system permit program and under the applicable waste discharge permit provisions of chapter 90.48 RCW.

NEW SECTION.  Sec. 2   A new section is added to chapter 90.48 RCW to read as follows:
     The definitions in this section apply throughout sections 2 through 4 of this act.
     (1) "Best management practices" means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the United States. Best management practices also includes treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
     (2) "Maximum extent practicable" means the technically sound and financially responsible, nonnumeric criteria applicable to all municipal storm water discharges through the implementation of best management practices.
     (3) "Municipal separate storm sewer" means a conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains:
     (a) Owned or operated by a state, city, town, borough, county, parish, district, association, or other public body created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under state law such as a sewer district, flood control district, or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the federal clean water act that discharges to waters of the United States;
     (b) Designed or used for collecting or conveying storm water;
     (c) That is not a combined sewer; and
     (d) That is not part of a publicly owned treatment works as defined in 40 C.F.R. Sec. 122.2.
     (4) "Municipality" means a city, town, borough, county, parish, district, association, or other public body created by or pursuant to state law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under 33 U.S.C. Sec. 1288.
     (5) "Storm water" means storm water runoff, snowmelt runoff, and surface water runoff and drainage.
     (6) "Watershed" means a distinct hydrologic drainage area that drains to a watercourse or water body named and noted on common maps, and may be a water resource inventory area established in chapter 173-500 WAC as it existed on January 1, 1997. A watershed may contain multiple basins or subbasins.

NEW SECTION.  Sec. 3   A new section is added to chapter 90.48 RCW to read as follows:
     (1) In establishing criteria for a municipal separate storm sewer system permit, the department may not require any municipality to engage in programmatic activity or to establish any facilities or systems not required by the federal clean water act.
     (2) The department shall by rule establish a fee schedule for permits issued under section 4 of this act based upon a municipality's size and ability to pay.

NEW SECTION.  Sec. 4   A new section is added to chapter 90.48 RCW to read as follows:
     The following terms and conditions govern any permit issued for discharges from municipal separate storm sewer systems.
     (1) Municipalities that own or operate municipal separate storm sewer systems that discharge under a permit issued under this section shall employ best management practices to the maximum extent practicable and when doing so shall be presumed in compliance with water quality standards.
     (2) The department shall develop separate permits for eastern and western Washington. Each permit developed for municipal separate storm sewer systems shall recognize the hydrographic and geological diversity of the area covered.
     (3)(a) The department may not require municipalities to perform or include land use plans or studies as a permit requirement. Municipalities may choose to include land use plans or studies as a best management practice. This section shall not be construed to conflict with 40 C.F.R. Sec. 122.26(d)(2)(iv)(A)(2).
     (b) The department, working jointly with permitted municipalities and the department of community, trade, and economic development, shall identify strategies that meet both the federal requirements and further infill or urban densification strategies identified in comprehensive plans and development regulations.
     (4)(a) The department may issue general permits for municipal separate storm sewer systems on a watershed-by-watershed basis. In determining whether to issue a general permit for all municipal separate storm sewer systems in a watershed, the department shall consider the following factors: (i) Physical interconnections between the various municipal separate storm sewer systems; (ii) the location of potentially covered municipal separate storm sewer system discharges relative to discharges from previously permitted municipal separate storm sewer systems; (iii) the quantity and nature of pollutants discharged in such waters of the state as may be located in the watershed; and (iv) the nature of those receiving waters.
     (b) Where more than one municipality owns or operates a municipal separate storm sewer system within a watershed, including adjacent or interconnected municipal separate storm sewer systems, such municipalities may agree to submit a single municipal separate storm sewer system general permit application for the entire watershed, and the department shall treat such municipalities as coapplicants.
     (c) This subsection shall not be construed to prevent individual municipalities from applying for separate coverage under a general permit for municipal separate storm sewer systems waste disposal.
     (d) Each municipality issued a permit within a watershed that has applied for a general permit as a coapplicant is liable and responsible only for the municipal separate storm sewer system within its municipal boundaries.
     (5)(a) A municipality that owns or operates a municipal separate storm sewer system subject to section 402(p) of the federal clean water act shall submit an application for permit coverage as required by this chapter and the administrative rules adopted under it.
     (b) Each municipality that applies for or is covered by a municipal separate storm sewer system permit shall maintain complete, up-to-date program documents. No municipality may be required to submit its municipal separate storm sewer system program documents to the department when applying for a municipal separate storm sewer system permit. However, the department may inspect and copy a municipality's municipal separate storm sewer systems program documents upon reasonable notice.
     (c) Each municipality that receives coverage under a municipal separate storm sewer system permit issued under this section shall submit performance reports as required by rule.
     (6) The department may not require a municipality that has a municipal separate storm sewer system discharge permit to obtain for that storm water discharge a state waste discharge permit under this chapter.
     (7) The provisions of chapter 34.05 RCW, the administrative procedure act, apply to all rule making necessary to implement this section and section 3 of this act and adjudicative proceedings authorized by or arising under this section.
     (8) To the extent that anything in RCW 90.48.160 through 90.48.200 and 90.48.465 conflicts with this section, this section shall control as to municipal separate storm sewer systems.
     (9) Nothing in this section is intended, nor shall any portion of this section be construed, to create any new or additional rights in any person.
     (10)(a) This section shall not be construed as creating a new cause of action against the state or any municipality.
     (b) Notwithstanding RCW 4.92.090, 4.96.010, and 64.40.020, no state law claim for damages may be filed against the state or any municipality for performing responsibilities under this section.