1336-S2.EAMHLINVH3153.1E2SHB 1336H AMD579By Representative LinvilleADOPTED 06/05/2003 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. The legislature declares and reaffirms thata core principle embodied in chapter 90.82 RCW is that state agenciesmust work cooperatively with local citizens in a process of planningfor future uses of water by giving local citizens and the governmentsclosest to them the ability to determine the management of water in theWRIA or WRIAs being planned. The legislature further finds that this process of local planningmust have all the tools necessary to accomplish this task and that itis essential for the legislature to provide a clear statutory processfor implementation so that the locally developed plan will be theadopted and implemented plan to the greatest extent possible.Sec. RCW 90.82.040 and 2001 c 237 s 2 are each amended to readas follows: (1) Once a WRIA planning unit has been initiated under RCW90.82.060 and a lead agency has been designated, it shall notify thedepartment and may apply to the department for funding assistance forconducting the planning and implementation. Funds shall be providedfrom and to the extent of appropriations made by the legislature to thedepartment expressly for this purpose. (2)(a) Each planning unit that has complied with subsection (1) ofthis section is eligible to receive watershed planning grants in thefollowing amounts for the first three phases of watershed planning andphase four watershed plan implementation: (i) Initiating governments may apply for an initial organizinggrant of up to fifty thousand dollars for a single WRIA or up toseventyfive thousand dollars for a multiWRIA management area inaccordance with RCW 90.82.060(4); 1 (ii)(A) A planning unit may apply for up to two hundred thousanddollars for each WRIA in the management area for conducting watershedassessments in accordance with RCW 90.82.070, except that a planningunit that chooses to conduct a detailed assessment or studies under(a)(ii)(B) of this subsection or whose initiating governments choose orhave chosen to include an instream flow or water quality component inaccordance with RCW 90.82.080 or 90.82.090 may apply for up to onehundred thousand additional dollars for each instream flow and up toone hundred thousand additional dollars for each water qualitycomponent included for each WRIA to conduct an assessment on thatoptional component and for each WRIA in which the assessments orstudies under (a)(ii)(B) of this subsection are conducted. (B) A planning unit may elect to apply for up to one hundredthousand additional dollars to conduct a detailed assessment ofmultipurpose water storage opportunities or for studies of specificmultipurpose storage projects which opportunities or projects areconsistent with and support the other elements of the planning unit'swatershed plan developed under this chapter; and (iii) A planning unit may apply for up to two hundred fiftythousand dollars for each WRIA in the management area for developing awatershed plan and making recommendations for actions by local, state,and federal agencies, tribes, private property owners, privateorganizations, and individual citizens, including a recommended list ofstrategies and projects that would further the purpose of the plan inaccordance with RCW 90.82.060 through 90.82.100. (b) A planning unit may request a different amount for phase two orphase three of watershed planning than is specified in (a) of thissubsection, provided that the total amount of funds awarded do notexceed the maximum amount the planning unit is eligible for under (a)of this subsection. The department shall approve such an alternativeallocation of funds if the planning unit identifies how the proposedalternative will meet the goals of this chapter and provides a proposedtimeline for the completion of planning. However, the up to onehundred thousand additional dollars in funding for instream flow andwater quality components and for water storage assessments or studiesthat a planning unit may apply for under (a)(ii)(A) of this subsection 2 may be used only for those instream flow, water quality, and waterstorage purposes. (c) By December 1, 2001, or within one year of initiating phase oneof watershed planning, whichever occurs later, the initiatinggovernments for each planning unit must inform the department whetherthey intend to have the planning unit establish or amend instream flowsas part of its planning process. If they elect to have the planningunit establish or amend instream flows, the planning unit is eligibleto receive one hundred thousand dollars for that purpose in accordancewith (a)(ii) of this subsection. If the initiating governments for aplanning unit elect not to establish or amend instream flows as part ofthe unit's planning process, the department shall retain one hundredthousand dollars to carry out an assessment to support establishment ofinstream flows and to establish such flows in accordance with RCW90.54.020(3)(a) and chapter 90.22 RCW. The department shall not usethese funds to amend an existing instream flow unless requested to doso by the initiating governments for a planning unit. (d) In administering funds appropriated for supplemental fundingfor optional plan components under (a)(ii) of this subsection, thedepartment shall give priority in granting the available funds toproposals for setting or amending instream flows. (e) A planning unit may apply for a matching grant for phase fourwatershed plan implementation following approval under the provisionsof RCW 90.82.130. A match of ten percent is required and may includefinancial contributions or inkind goods and services directly relatedto coordination and oversight functions. The match can be provided bythe planning unit or by the combined commitments from federal agencies,tribal governments, local governments, special districts, or otherlocal organizations. The phase four grant may be up to one hundredthousand dollars for each planning unit for each of the first threeyears of implementation. At the end of the threeyear period, a twoyear extension may be available for up to fifty thousand dollars eachyear. For planning units that cover more than one WRIA, additionalmatching funds of up to twentyfive thousand dollars may be availablefor each additional WRIA per year for the first three years ofimplementation, and up to twelve thousand five hundred dollars per WRIAper year for each of the fourth and fifth years. 3 (3)(a) The department shall use the eligibility criteria in thissubsection (3) instead of rules, policies, or guidelines whenevaluating grant applications at each stage of the grants program. (b) In reviewing grant applications under this subsection (3), thedepartment shall evaluate whether: (i) The planning unit meets all of the requirements of thischapter; (ii) The application demonstrates a need for state planning fundsto accomplish the objectives of the planning process; and (iii) The application and supporting information evidences areadiness to proceed. (c) In ranking grant applications submitted at each stage of thegrants program, the department shall give preference to applications inthe following order of priority: (i) Applications from existing planning groups that have been inexistence for at least one year; (ii) Applications that address protection and enhancement of fishhabitat in watersheds that have aquatic fish species listed or proposedto be listed as endangered or threatened under the federal endangeredspecies act, 16 U.S.C. Sec. 1531 et seq. and for which there isevidence of an inability to supply adequate water for population andeconomic growth from: (A) First, multiWRIA planning; and (B) Second, single WRIA planning; (iii) Applications that address protection and enhancement of fishhabitat in watersheds or for which there is evidence of an inability tosupply adequate water for population and economic growth from: (A) First, multiWRIA planning; and (B) Second, single WRIA planning. (d) Except for phase four watershed plan implementation, thedepartment may not impose any local matching fund requirement as acondition for grant eligibility or as a preference for receiving agrant. (4) The department may retain up to one percent of funds allocatedunder this section to defray administrative costs. (5) Planning under this chapter should be completed as 4 expeditiously as possible, with the focus being on local stakeholderscooperating to meet local needs. (6) Funding provided under this section shall be considered acontractual obligation against the moneys appropriated for thispurpose.NEW SECTION.Sec. A new section is added to chapter 90.82 RCWto read as follows: (1) Within one year of accepting funding under RCW 90.82.040(2)(e),the planning unit must complete a detailed implementation plan.Submittal of a detailed implementation plan to the department is acondition of receiving grants for the second and all subsequent yearsof the phase four grant. (2) Each implementation plan must contain strategies to providesufficient water for: (a) Production agriculture; (b) commercial,industrial, and residential use; and (c) instream flows. Eachimplementation plan must contain timelines to achieve these strategiesand interim milestones to measure progress. (3) The implementation plan must clearly define coordination andoversight responsibilities; any needed interlocal agreements, rules, orordinances; any needed state or local administrative approvals andpermits that must be secured; and specific funding mechanisms. (4) In developing the implementation plan, the planning unit mustconsult with other entities planning in the watershed management areaand identify and seek to eliminate any activities or policies that areduplicative or inconsistent. (5) By December 1, 2003, and by December 1st of each subsequentyear, the director of the department shall report to the appropriatelegislative standing committees regarding statutory changes necessaryto enable state agency approval or permit decision making needed toimplement a plan approved under this chapter.Sec. RCW 90.82.080 and 1998 c 247 s 4 are each amended to readas follows: (1)(a) If the initiating governments choose, by majority vote, toinclude an instream flow component, it shall be accomplished in thefollowing manner: 5 (i) If minimum instream flows have already been adopted by rule fora stream within the management area, unless the members of the localgovernments and tribes on the planning unit by a recorded unanimousvote request the department to modify those flows, the minimum instreamflows shall not be modified under this chapter. If the members oflocal governments and tribes request the planning unit to modifyinstream flows and unanimous approval of the decision to modify suchflow is not achieved, then the instream flows shall not be modifiedunder this section; (ii) If minimum stream flows have not been adopted by rule for astream within the management area, setting the minimum instream flowsshall be a collaborative effort between the department and members ofthe planning unit. The department must attempt to achieve consensusand approval among the members of the planning unit regarding theminimum flows to be adopted by the department. Approval is achieved ifall government members and tribes that have been invited and acceptedon the planning unit present for a recorded vote unanimously vote tosupport the proposed minimum instream flows, and all nongovernmentalmembers of the planning unit present for the recorded vote, by amajority, vote to support the proposed minimum instream flows. (b) The department shall undertake rule making to adopt flows under(a) of this subsection. The department may adopt the rules either bythe regular rules adoption process provided in chapter 34.05 RCW, theexpedited rules adoption process as set forth in RCW ((34.05.230))34.05.353, or through a rules adoption process that uses publichearings and notice provided by the county legislative authority to thegreatest extent possible. Such rules do not constitute significantlegislative rules as defined in RCW 34.05.328, and do not require thepreparation of small business economic impact statements. (c) If approval is not achieved within four years of the date theplanning unit first receives funds from the department for conductingwatershed assessments under RCW 90.82.040, the department may promptlyinitiate rule making under chapter 34.05 RCW to establish flows forthose streams and shall have two additional years to establish theinstream flows for those streams for which approval is not achieved. (2)(a) Notwithstanding RCW 90.03.345, minimum instream flows setunder this section for rivers or streams that do not have existing 6 minimum instream flow levels set by rule of the department shall havea priority date of two years after funding is first received from thedepartment under RCW 90.82.040, unless determined otherwise by aunanimous vote of the members of the planning unit but in no instancemay it be later than the effective date of the rule adopting such flow. (b) Any increase to an existing minimum instream flow set by ruleof the department shall have a priority date of two years after fundingis first received for planning in the WRIA or multiWRIA area from thedepartment under RCW 90.82.040 and the priority date of the portion ofthe minimum instream flow previously established by rule shall retainits priority date as established under RCW 90.03.345. (c) Any existing minimum instream flow set by rule of thedepartment that is reduced shall retain its original date of priorityas established by RCW 90.03.345 for the revised amount of the minimuminstream flow level. (3) Before setting minimum instream flows under this section, thedepartment shall engage in governmenttogovernment consultation withaffected tribes in the management area regarding the setting of suchflows. (4) Nothing in this chapter either: (a) Affects the department'sauthority to establish flow requirements or other conditions under RCW90.48.260 or the federal clean water act (33 U.S.C. Sec. 1251 et seq.)for the licensing or relicensing of a hydroelectric power project underthe federal power act (16 U.S.C. Sec. 791 et seq.); or (b) affects orimpairs existing instream flow requirements and other conditions in acurrent license for a hydroelectric power project licensed under thefederal power act. (5) If the planning unit is unable to obtain unanimity undersubsection (1) of this section, the department may adopt rules settingsuch flows. (6) The department shall report annually to the appropriatelegislative standing committees on the progress of instream flows beingset under this chapter, as well as progress toward setting instreamflows in those watersheds not being planned under this chapter. Thereport shall be made by December 1, 2003, and by December 1st of eachsubsequent year. 7 Sec. RCW 90.82.130 and 2001 c 237 s 4 are each amended to readas follows: (1)(a) Upon completing its proposed watershed plan, the planningunit may approve the proposal by consensus of all of the members of theplanning unit or by consensus among the members of the planning unitappointed to represent units of government and a majority vote of thenongovernmental members of the planning unit. (b) If the proposal is approved by the planning unit, the unitshall submit the proposal to the counties with territory within themanagement area. If the planning unit has received funding beyond theinitial organizing grant under RCW 90.82.040, such a proposal approvedby the planning unit shall be submitted to the counties within fouryears of the date that funds beyond the initial funding are first drawnupon by the planning unit. (c) If the watershed plan is not approved by the planning unit, theplanning unit may submit the components of the plan for which agreementis achieved using the procedure under (a) of this subsection, or theplanning unit may terminate the planning process. (2)(a) With the exception of a county legislative authority thatchooses to opt out of watershed planning as provided in (c) of thissubsection, the legislative authority of each of the counties withterritory in the management area shall provide public notice of andconduct at least one public hearing on the proposed watershed plansubmitted under this section. After the public hearings, thelegislative authorities of these counties shall convene in jointsession to consider the proposal. The counties may approve or rejectthe proposed watershed plan for the management area, but may not amendit. Approval of such a proposal shall be made by a majority vote ofthe members of each of the counties with territory in the managementarea. (b) If a proposed watershed plan is not approved, it shall bereturned to the planning unit with recommendations for revisions.Approval of such a revised proposal by the planning unit and thecounties shall be made in the same manner provided for the originalwatershed plan. If approval of the revised plan is not achieved, theprocess shall terminate. 8 (c) A county legislative authority may choose to opt out ofwatershed planning under this chapter and the public hearing processesunder (a) and (b) of this subsection if the county's affected territorywithin a particular management area is: (i) Less than five percent ofthe total territory within the management area; or (ii) five percent ormore of the total territory within the management area and all otherinitiating governments within the management area consent. A countymeeting these conditions and choosing to opt out shall notify thedepartment and the other initiating governments of that choice prior tocommencement of plan adoption under the provisions of (a) of thissubsection. A county choosing to opt out under the provisions of thissection shall not be bound by obligations contained in the watershedplan adopted for that management area under this chapter. Even if acounty chooses to opt out under the provisions of this section, theother counties within a management area may adopt a proposed watershedplan as provided in this chapter. (3) The planning unit shall not add an element to its watershedplan that creates an obligation unless each of the governments to beobligated has at least one representative on the planning unit and therespective members appointed to represent those governments agree toadding the element that creates the obligation. A member's agreeing toadd an element shall be evidenced by a recorded vote of all members ofthe planning unit in which the members record support for adding theelement. If the watershed plan is approved under subsections (1) and(2) of this section and the plan creates obligations: (a) For agenciesof state government, the agencies shall adopt by rule the obligationsof both state and county governments and rules implementing the stateobligations, or, with the consent of the planning unit, may adoptpolicies, procedures, or agreements related to the obligations orimplementation of the obligations in addition to or in lieu of rules.The obligations on state agencies are binding upon adoption of theobligations ((into rule)), and the agencies shall take other actions tofulfill their obligations as soon as possible, and should annuallyreview implementation needs with respect to budget and staffing; ((or))(b) for counties, the obligations are binding on the counties and thecounties shall adopt any necessary implementing ordinances and takeother actions to fulfill their obligations as soon as possible, and 9 should annually review implementation needs with respect to budget andstaffing; or (c) for an organization voluntarily accepting anobligation, the organization must adopt policies, procedures,agreements, rules, or ordinances to implement the plan, and shouldannually review implementation needs with respect to budget andstaffing. (4) After a plan is adopted in accordance with subsection (3) ofthis section, and if the department participated in the planningprocess, the plan shall be deemed to satisfy the watershed planningauthority of the department with respect to the components includedunder the provisions of RCW 90.82.070 through 90.82.100 for thewatershed or watersheds included in the plan. The department shall usethe plan as the framework for making future water resource decisionsfor the planned watershed or watersheds. Additionally, the departmentshall rely upon the plan as a primary consideration in determining thepublic interest related to such decisions. (5) Once a WRIA plan has been approved under subsection (2) of thissection for a watershed, the department may develop and adoptmodifications to the plan or obligations imposed by the plan onlythrough a form of negotiated rule making that uses the same processesthat applied in that watershed for developing the plan. (6) As used in this section, "obligation" means any action requiredas a result of this chapter that imposes upon a tribal government,county government, or state government, either: A fiscal impact; aredeployment of resources; or a change of existing policy.E2SHB 1336H AMD579By Representative LinvilleADOPTED 06/05/2003 On page 1, line 1 of the title, after planning; strike theremainder of the title and insert amending RCW 90.82.040, 90.82.080,and 90.82.130; adding a new section to chapter 90.82 RCW; and creatinga new section. 10 The amendment: requires a 10 percent (rather than a 10 to25 percent) local match for the Phase IV grants; requires the detailedplan for implementing a watershed plan (rather than each plan itself)to contain the strategies, with timelines and milestones, for providingsufficient water for the various outof stream uses and for instreamflows and removes provisions specifying their content; requires theplanning unit to identify and seek to eliminate activities that areduplicative or inconsistent, with regard to other planning beingconducted in a watershed; allows a county with five percent or more ofthe territory in the planning area to opt out of watershed planningwith the consent of the governments that initiated the planning;authorizes the DOE to develop and adopt modifications to an approvedwatershed plan or obligations under a plan through a form of negotiatedrulemaking the uses the processes that were used in developing theplan (rather than requiring the DOE to adopt its implementing rulesthrough negotiated rulemaking); states that an approved watershed planprovides the framework for making water resource (rather than waterresource and water quality) decisions in the watershed; requires theconsent of a planning unit for a state agency to adopt policies,procedures, or agreements for implementing a watershed plan in additionto or in lieu of adopting implementing rules; and requires the DOE toreport annually to the Legislature on progress made in setting instreamflows. The amendment also strikes provisions: requiring local planninggroups under the Water Resources Act to have at least the range ofrepresentation required under the watershed planning laws; requiringinstream flows to be set for not less than the main stem or theprincipal stream or river in each WRIA; establishing certain proceduresfor coordinating TMDLs and salmon recovery planning with watershedplanning for water quality and habitat; requiring certain consultationbefore funding for certain salmon recovery projects may be received;requiring other state agencies to report to the DOE on the statutorychanges needed to provide the state agency approvals and permits neededto implement a watershed plan; and requiring the bill to be implementedwithin existing funds.--- END --- 11