BILL REQ. #:  H-4669.1 

Read first time 02/04/2004.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to national pollutant discharge elimination system permits for application of aquatic pesticides; amending RCW 90.48.020, 90.48.030, 90.48.260, and 90.48.465; adding new sections to chapter 90.48 RCW; creating a new section; and declaring an emergency.

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

NEW SECTION.  Sec. 1   (1) The legislature declares that effective aquatic pest control is crucial to maintaining and enhancing agricultural, aquacultural, fishing, and recreational opportunities as well as the quality of life in Washington. The legislature recognizes that aquatic pesticides are an integral part of strategies to eliminate and control the growth of aquatic pests. The legislature also recognizes that aquatic pesticides include a variety of chemicals, such as herbicides, insecticides, piscicides, and algaecides, that are applied in our state's lakes, rivers, and estuaries.
     (2) The legislature also recognizes that the ninth circuit court of appeals concluded in Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th cir. 2001), that an application of aquatic herbicides into an irrigation canal was the discharge of a pollutant to navigable waters from a point source. In addition, the legislature recognizes that the ninth circuit court of appeals in the Talent decision concluded that such an application required a national pollutant discharge elimination system (NPDES) permit. The legislature recognizes that the court in the Talent decision also determined that compliance with the registration and labeling requirements of the federal insecticide, fungicide, and rodenticide act (FIFRA) did not obviate the need for the NPDES permit.
     (3) The legislature further recognizes that the department of ecology implemented an NPDES permit program for the application of aquatic pesticides in response to the Talent decision. The legislature recognizes that the department of ecology has developed NPDES permits for irrigation system weed control, mosquito larvae control, noxious weed control, nuisance plant and algae control, fish management, and oyster growers.
     (4) The legislature also recognizes that, after the Talent decision, the federal environmental protection agency issued guidance that the application of an aquatic herbicide consistent with the FIFRA label to ensure the passage of irrigation return flow is a nonpoint source discharge not subject to NPDES permit requirements under the federal clean water act. The legislature recognizes that the federal environmental protection agency based its decision on the federal clean water act's exemption of discharges composed entirely of return flows from irrigated agriculture and its exclusion of return flows from the point source definition. The legislature also recognizes that this federal guidance does not address whether other types of direct applications of FIFRA-registered pesticides beyond the scope of the exemption are subject to NPDES permitting requirements.
     (5) The legislature declares the state should require NPDES permits for application of aquatic pesticides only when such requirement is consistent with federal environmental protection agency guidance and federal permitting requirements in nondelegated states. The legislature therefore intends to require this consistency in the state's NPDES permit program.
     (6) The legislature also intends to transfer authority for issuing any NPDES permits required for application of aquatic pesticides from the department of ecology to the department of agriculture, subject to federal approval, and provide for permit program operations until federal approval of transfer of this authority is obtained.

Sec. 2   RCW 90.48.020 and 2002 c 161 s 4 are each amended to read as follows:
     ((Whenever the word)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Aquatic pesticides" includes a variety of chemicals, such as herbicides, insecticides, piscicides, and algaecides, applied in waters of the state for aquatic pest control.
     (2) "Person" ((is used in this chapter, it shall be construed to)) includes any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, or any other entity whatsoever.
     ((Wherever the words)) (3) "Waters of the state" ((shall be used in this chapter, they shall be construed to)) includes lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington.
     ((Whenever the word)) (4) "Pollution" ((is used in this chapter, it shall be construed to)) means such contamination, or other alteration of the physical, chemical, or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental, or injurious to the public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.
     ((Wherever the word)) (5) "Department" ((is used in this chapter it shall)) means the department of ecology.
     ((Whenever the word)) (6) "Director" ((is used in this chapter it shall)) means the director of ecology.
     ((Whenever the words)) (7) "Aquatic noxious weed" ((are used in this chapter, they have)) has the same meaning ((prescribed under)) as in RCW 17.26.020.
     ((Whenever the words)) (8) "General sewer plan" ((are used in this chapter they shall be construed to)) includes all sewerage general plans, sewer general comprehensive plans, plans for a system of sewerage, and other plans for sewer systems adopted by a local government entity including but not limited to cities, towns, public utility districts, and water-sewer districts.

Sec. 3   RCW 90.48.030 and 1987 c 109 s 123 are each amended to read as follows:
     Except as provided in RCW 90.48.260, the department shall have the jurisdiction to control and prevent the pollution of streams, lakes, rivers, ponds, inland waters, salt waters, water courses, and other surface and underground waters of the state of Washington.

Sec. 4   RCW 90.48.260 and 2003 c 325 s 7 are each amended to read as follows:
     (1) The department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the federal clean water act ((as it exists on February 4, 1987)), and is hereby authorized to participate fully in the programs of the federal clean water act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act. With regard to the national estuary program established by section 320 of that act, the department shall exercise its responsibility jointly with the Puget Sound ((water quality authority)) action team.
     (2) The department of ecology may delegate its authority under this chapter, including its national pollutant discharge elimination permit system authority and duties regarding animal feeding operations and concentrated animal feeding operations, to the department of agriculture through a memorandum of understanding. Until any such delegation receives federal approval, the department of agriculture's adoption or issuance of animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives pertaining to water quality shall be accomplished after reaching agreement with the director of the department of ecology. Adoption or issuance and implementation shall be accomplished so that compliance with such animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives will achieve compliance with all federal and state water pollution control laws.
     (3) Subject to federal approval, the department's authority related to national pollutant discharge elimination system permits for application of aquatic pesticides shall be transferred to the department of agriculture.
     (a) The department and department of agriculture shall specify in a memorandum of understanding their respective responsibilities and activities, including permit issuance and collection of permit fees, with respect to national pollutant discharge elimination system permits for application of aquatic pesticides during the transfer period. The memorandum of understanding remains in effect until federal approval for the transfer is received.
     (b) Until federal approval is received, the department of agriculture's adoption or issuance of aquatic pesticide application rules, permits, programs, and directives shall be accomplished after reaching agreement with the director. Adoption or issuance and implementation shall be accomplished so that compliance with such aquatic pesticide application rules, permits, programs, and directives will achieve compliance with all federal and state water pollution control laws.
     (4) The powers granted herein include, among others, and notwithstanding any other provisions of chapter 90.48 RCW or otherwise, the following:
     (((1))) (a) Complete authority to establish and administer a comprehensive state point source waste discharge or pollution discharge elimination permit program which will enable the department to qualify for full participation in any national waste discharge or pollution discharge elimination permit system and will allow the department to be the sole agency issuing permits required by such national system operating in the state of Washington subject to the provisions of RCW 90.48.262(2). Program elements authorized herein may include, but are not limited to:
     (((a))) (i) Effluent treatment and limitation requirements together with timing requirements related thereto;
     (((b))) (ii) Applicable receiving water quality standards requirements;
     (((c))) (iii) Requirements of standards of performance for new sources;
     (((d))) (iv) Pretreatment requirements;
     (((e))) (v) Termination and modification of permits for cause;
     (((f))) (vi) Requirements for public notices and opportunities for public hearings;
     (((g))) (vii) Appropriate relationships with the secretary of the army in the administration of ((his)) the secretary's responsibilities which relate to anchorage and navigation, with the administrator of the environmental protection agency in the performance of ((his)) the secretary's duties, and with other governmental officials under the federal clean water act;
     (((h))) (viii) Requirements for inspection, monitoring, entry, and reporting;
     (((i))) (ix) Enforcement of the program through penalties, emergency powers, and criminal sanctions;
     (((j))) (x) A continuing planning process; and
     (((k))) (xi) User charges.
     (((2))) (b) The power to establish and administer state programs in a manner ((which)) that will ((insure)) ensure the procurement of moneys, whether in the form of grants, loans, or otherwise; to assist in the construction, operation, and maintenance of various water pollution control facilities and works; and the administering of various state water pollution control management, regulatory, and enforcement programs.
     (((3))) (c) The power to develop and implement appropriate programs pertaining to continuing planning processes, area-wide waste treatment management plans, and basin planning.
     (5) The governor shall have authority to perform those actions required of him or her by the federal clean water act.

Sec. 5   RCW 90.48.465 and 2002 c 361 s 2 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 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.
     (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 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 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 or an individual permit ((developed 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))) for the application of aquatic pesticides is limited, until June 30, 2003, to a maximum of three hundred dollars. ((Such a permit is required only, and as long as, the interpretation of this court decision is not overturned or modified by future court rulings, administrative rule making, or clarification of scope by the United States environmental protection agency or legislative action. In such a case the department shall take appropriate action to rescind or modify these permits.)) Thereafter, the fee may be increased according to the fiscal growth factor as provided in chapter 43.135 RCW.
     (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.
     (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. 6   A new section is added to chapter 90.48 RCW to read as follows:
     (1) A national pollutant discharge elimination system permit for the application of aquatic pesticides shall be required only, and as long as, such a permit requirement is consistent with:
     (a) Rules, guidance, or policy of the United States environmental protection agency; and
     (b) The United States environmental protection agency's permit requirements in states that have not been delegated authority under the federal clean water act to issue such permits.
     (2) If any inconsistency in permit requirements as specified in subsection (1) of this section occurs, the department, or the department of agriculture once transfer of permit authority receives federal approval, shall take appropriate action to rescind or modify any permits that have been issued.

NEW SECTION.  Sec. 7   A new section is added to chapter 90.48 RCW to read as follows:
     (1) The department and department of agriculture shall cooperate in requesting federal approval for the transfer of the national pollutant discharge elimination system permit program for the application of aquatic pesticides from the department to the department of agriculture. When federal approval is received, the department of agriculture shall assume the powers and duties of the department specified in this chapter as they relate to the aquatic pesticide permit program and consistent with the federal approval.
     (2) By December 31, 2004, the department and the department of agriculture shall jointly submit to the legislature a progress report regarding the transfer of the aquatic pesticides permit program and the federal approval and include in that report recommendations for any statutory or regulatory changes necessary to facilitate the transfer.

NEW SECTION.  Sec. 8   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 9   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.