5375-S.EAMHAPPH2764.2ESSB 5375H COMM AMDBy Committee on Appropriations Strike everything after the enacting clause and insert thefollowing:"PART 1LEGISLATIVE INTENT AND DEFINITIONSNEW SECTION.Sec. The legislature finds that the state hasacted to plan for the protection and preservation of fish life byestablishing policies that affect the protection of marine andfreshwater habitat in the growth management act, the shorelinesmanagement act, the forest and fish plan, and the habitat conservationplan. The legislature further finds that the state requires theexamination of the environmental impacts of construction projects andwork in Washington to minimize and mitigate the impact of thoseprojects through the state environmental policy act. The legislature further finds that while these various actsregulate the planning and design of upland projects, it is necessary tocall on the expertise of the department of fish and wildlife toimplement rules governing construction or work activities that occurbelow the ordinary high water line or other work specificallydesignated by the legislature in such a manner so as to protect fishlife. This policy recognizes that all such construction and work is to bepermitted in a timely and efficient fashion with an aim towardpreserving existing public and private property, preventing damage tothe environment, protecting fish life, and permitting the efficientconstruction of new facilities.NEW SECTION.Sec. The definitions in this section applythroughout this chapter unless the context clearly requires otherwise. 1 (1) "Bed" means the land below the ordinary high water lines ofstate waters. This definition does not include irrigation ditches,canals, storm water runoff devices, or other artificial watercoursesexcept where they exist in a natural watercourse that has been alteredby man. (2) "Board" means the hydraulic appeals board created in RCW77.55.170 (as recodified by this act). (3) "Commission" means the state fish and wildlife commission. (4) "Department" means the department of fish and wildlife. (5) "Director" means the director of the department of fish andwildlife. (6) "Emergency" means an immediate threat to life, the public,property, or of environmental degradation arising from weather orstream flow conditions or other natural conditions. (7) "Hydraulic project" means the construction or performance ofwork that will use, divert, obstruct, or change the natural flow or bedof any of the salt or freshwaters of the state. (8) "Imminent danger" means a threat by weather, water flow, orother natural conditions that is likely to occur within sixty days ofa request for a permit application. (9) "Marina" means a public or private facility providing boatmoorage space, fuel, or commercial services. Commercial servicesinclude but are not limited to overnight or liveaboard boatingaccommodations. (10) "Marine terminal" means a public or private commercial wharflocated in the navigable water of the state and used, or intended to beused, as a port or facility for the storing, handling, transferring, ortransporting of goods to and from vessels. (11) "Ordinary high water line" means the mark on the shores of allwater that will be found by examining the bed and banks andascertaining where the presence and action of waters are so common andusual, and so long continued in ordinary years as to mark upon the soilor vegetation a character distinct from the abutting upland. Provided,that in any area where the ordinary high water line cannot be found,the ordinary high water line adjoining saltwater is the line of meanhigher high water and the ordinary high water line adjoining freshwater is the line of mean high water. 2 (12) "Permit" means a hydraulic project approval permit issuedunder this chapter. (13) "Sandbars" includes, but is not limited to, sand, gravel,rock, silt, and sediments. (14) "Small scale prospecting and mining" means the use of only thefollowing methods: Pans; nonmotorized sluice boxes; concentrators; andminirocker boxes for the discovery and recovery of minerals. (15) "Spartina," "purple loosestrife," and "aquatic noxious weeds"have the same meanings as defined in RCW 17.26.020. (16) "Streambank stabilization" means those projects that preventor limit erosion, slippage, and mass wasting. These projects arelimited to bank resloping, log and debris relocation or removal,planting of woody vegetation, bank protection using rock or woodymaterial or placement of jetties or groins, gravel removal, or erosioncontrol. (17) "Waters of the state" and "state waters" means all salt andfresh waters within the ordinary high water line and within theterritorial boundary of the state.PART 2DETERMINING HOW TO OBTAIN A HYDRAULIC PROJECT APPROVAL PERMITNEW SECTION.Sec. (1) In the event that any person orgovernment agency desires to undertake a hydraulic project, the personor government agency shall, before commencing work thereon, secure theapproval of the department in the form of a permit as to the adequacyof the means proposed for the protection of fish life. (2) A complete written application for a permit may be submitted inperson or by registered mail and must contain the following: (a) General plans for the overall project; (b) Complete plans and specifications of the proposed constructionor work within the mean higher high water line in saltwater or withinthe ordinary high water line in freshwater; (c) Complete plans and specifications for the proper protection offish life; (d) Notice of compliance with any applicable requirements of thestate environmental policy act; and 3 (e) Provisions allowing for minor modifications to the plans andspecifications without requiring reissuance of the permit as acondition of the application. (3)(a) Protection of fish life is the only ground upon whichapproval of a permit may be denied or conditioned. Approval of apermit may not be unreasonably withheld or unreasonably conditioned.The department has fortyfive calendar days upon receipt of a completeapplication to grant or deny approval of a permit. The fortyfive dayrequirement is suspended if: (i) After ten working days of receipt of the application, theapplicant remains unavailable or unable to arrange for a timely fieldevaluation of the proposed project; (ii) The site is physically inaccessible for inspection; (iii) The applicant requests a delay; or (iv) The application is not complete. (b) Immediately upon determination that the fortyfive day periodis suspended, the department shall notify the applicant in writing ofthe reasons for the delay. (4) If the department denies approval of a permit, the departmentshall provide the applicant a written statement of the specific reasonswhy and how the proposed project would adversely affect fish life.Issuance, denial, conditioning, or modification of a permit shall beappealable to the board within thirty days of the notice of decision. (5)(a) The permittee must demonstrate substantial progress onconstruction of that portion of the project relating to the permitwithin two years of the date of issuance. (b) Approval of a permit is valid for a period of up to five yearsfrom the date of issuance, except as provided in (c) of this subsectionand in RCW 77.55.220. (c) A permit remains in effect without need for periodic renewalfor hydraulic projects that divert water for agricultural irrigation orstock watering purposes and that involve seasonal construction or otherwork. A permit for streambank stabilization projects to protect farmand agricultural land as defined in RCW 84.34.020 remains in effectwithout need for periodic renewal if the problem causing the need forthe streambank stabilization occurs on an annual or more frequent 4 basis. The permittee must notify the appropriate agency beforecommencing the construction or other work within the area covered bythe permit. (6) The department may, after consultation with the permittee,modify a permit due to changed conditions. The modification becomeseffective unless appealed to the board within thirty days from thenotice of the proposed modification. The burden is on the departmentto show that changed conditions warrant the modification in order toprotect fish life. (7) A permittee may request modification of a permit due to changedconditions. The request must be processed within fortyfive calendardays of receipt of the written request. A decision by the departmentmay be appealed to the board within thirty days of the notice of thedecision. The burden is on the permittee to show that changedconditions warrant the requested modification and that such amodification will not impair fish life. (8) The department or the county legislative authority may declareand continue an emergency. The county legislative authority shallimmediately notify the department if it declares an emergency underthis subsection. The department, through its authorizedrepresentatives, shall issue immediately, upon request, oral approvalfor a stream crossing, or work to remove any obstructions, repairexisting structures, restore streambanks, protect fish life, or protectproperty threatened by the stream or a change in the stream flowwithout the necessity of obtaining a written permit prior to commencingwork. Conditions of the emergency oral permit must be established bythe department and reduced to writing within thirty days and compliedwith as provided for in this chapter. The department may not requirethe provisions of the state environmental policy act, chapter 43.21CRCW, to be met as a condition of issuing a permit under thissubsection. (9) All state and local agencies with authority under this chapterto issue permits or other authorizations in connection with emergencywater withdrawals and facilities authorized under RCW 43.83B.410 shallexpedite the processing of such permits or authorizations in keepingwith the emergency nature of such requests and shall provide a decision 5 to the applicant within fifteen calendar days of the date ofapplication. (10) The department or the county legislative authority maydetermine an imminent danger exists. The county legislative authorityshall notify the department, in writing, if it determines that animminent danger exists. In cases of imminent danger, the departmentshall issue an expedited written permit, upon request, for work toremove any obstructions, repair existing structures, restore banks,protect fish resources, or protect property. Expedited permit requestsrequire a complete written application as provided in subsection (2) ofthis section and must be issued within fifteen calendar days of thereceipt of a complete written application. Approval of an expeditedpermit is valid for up to sixty days from the date of issuance. Thedepartment may not require the provisions of the state environmentalpolicy act, chapter 43.21C RCW, to be met as a condition of issuing apermit under this subsection. (11) The department may issue an expedited written permit in thoseinstances where normal permit processing would result in significanthardship for the applicant or unacceptable damage to the environment.Expedited permit requests require a complete written application asprovided in subsection (2) of this section and must be issued withinfifteen calendar days of the receipt of a complete written application.Approval of an expedited permit is valid for up to sixty days from thedate of issuance. The department may not require the provisions of thestate environmental policy act, chapter 43.21C RCW, to be met as acondition of issuing a permit under this subsection.NEW SECTION.Sec. (1)(a) The department must develop generalpermits for common or routine activities to improve the predictabilityand efficiency of the hydraulic project approval program. At aminimum, the department must, by December 2004, develop general permitsfor the following activities: (i) Minor dredging of up to ten yards of sediment from an existingchannel, berthing area, or boat ramp; (ii) Routine repair and maintenance of tide gates; (iii) Replacement of up to sixty pilings including construction ofmooring dolphins and fender pilings; 6 (iv) Routine repair or maintenance of road and highway structuressuch as culverts and ditches; (v) Routine repair and maintenance of bridge structures below theordinary high water line; and (vi) Geotechnical or exploratory work conducted as part of projectplanning or development. (b) The department may develop additional general permits for inwater construction activities as available resources allow. (2) General permits must contain conditions necessary to protectfish life, and must clearly delineate predictable conditions andrestrictions that project applicants may incorporate into projectdesign and construction. The department must develop, in consultationwith an advisory committee, common technical provisions that must beincorporated into general conditions for each general permit. (3) The department shall post electronically and otherwise makegenerally available the following information for each general permit: (a) A description of activities covered; (b) The conditions and practices a project applicant must follow toreceive coverage under the permit; and (c) A notice of intent form for use by applicants to includeinformation on project location and habitat types affected. (4) To receive coverage under a general permit, a project applicantmust: (a) Send a notice of intent to follow the conditions of a generalpermit to the department twentyone days before construction is tobegin; and (b) Post the general permit prominently at the worksite. (5) Within ten days of receipt of a notice of intent from a projectapplicant, the department must notify the applicant of the status ofgeneral permit coverage. Status includes permit approval, denial, orconditioning. Issuance, denial, conditioning, or modification of apermit shall be appealable to the board within thirty days of thenotice of decision.NEW SECTION.Sec. (1) Certain federal and state regulatoryreview processes may provide review and protection of fish life that isequivalent to the review provided by the department under this chapter. 7 This may include, among other permits, federal review of a projectunder the endangered species act (16 U.S.C. Sec. 1531 et seq.), afederal permit under section 404 of the federal water pollution controlact (33 U.S.C. Sec. 1251 et seq.), state review of a project undersection 401 of the federal water pollution control act (33 U.S.C. Sec.1251 et seq.), or state review of shorelines under chapter 90.58 RCW. (2) At any point in project development or permitting, an applicantmay submit to the department a notice of intent to proceed under anequivalent regulatory review. The notice must include a description ofthe project, the habitat impacted, and the equivalent permits requiredfor the project. The director or director's designee shall make adetermination regarding the equivalency of other regulatory permitswithin fifteen days of receiving the notice. If the notice ofequivalency is approved, the project is exempt from the requirement toreceive hydraulic project approval under this chapter. If the noticeof equivalency is denied, the department must provide the applicant, inwriting, specific reasons why the other regulatory reviews will notadequately protect fish life. (3) Any person aggrieved by a decisionunder subsection (2) of this section may appeal the decision accordingto the provisions of chapter 34.05 RCW.PART 3EXEMPTION FROM HYDRAULIC PROJECT APPROVALNEW SECTION.Sec. The act of driving across an establishedford is exempt from a permit. Driving across streams or on wettedstreambeds at areas other than established fords requires a permit.Work below the ordinary high water line of state waters to construct orrepair a ford or crossing requires a permit.Sec. RCW 77.55.330 and 2002 c 20 s 4 are each amended to readas follows: The removal of derelict fishing gear does not require ((writtenapproval)) a permit under this chapter if the gear is removed accordingto the guidelines described in RCW 77.12.865. 8 NEW SECTION.Sec. (1) An activity conducted solely for theremoval or control of spartina does not require a permit. (2) An activity conducted solely for the removal or control ofpurple loosestrife and which is performed with handheld tools, handheldequipment, or equipment carried by a person does not require a permit.PART 4COMPLIANCE THROUGH GUIDELINES, AGREEMENTS, AND PAMPHLETSSec. RCW 77.55.150 and 1995 c 255 s 4 are each amended toread as follows: (1) ((An activity conducted solely for the removal or control ofspartina shall not require hydraulic project approval. (2) An activity conducted solely for the removal or control ofpurple loosestrife and which is performed with handheld tools, handheld equipment, or equipment carried by a person when used shall notrequire hydraulic project approval. (3))) By June 30, 1997, the department ((of fish and wildlife))shall develop rules for projects conducted solely for the removal orcontrol of various aquatic noxious weeds other than spartina and purpleloosestrife and for activities or hydraulic projects for controllingpurple loosestrife not covered by ((subsection (2))) section 303(2) ofthis ((section, which projects will use, divert, obstruct, or changethe natural flow or bed of any of the salt or fresh waters of thestate)) act. Following the adoption of the rules, the department shallproduce and distribute a pamphlet describing the methods of removing orcontrolling the aquatic noxious weeds that are approved under therules. The pamphlet serves as the ((hydraulic project approval))permit for any project that is conducted solely for the removal orcontrol of such aquatic noxious weeds and that is conducted asdescribed in the pamphlet((;)). No further ((hydraulic projectapproval)) permit is required for such a project. (2) From time to time as information becomes available, thedepartment shall adopt similar rules for additional aquatic noxiousweeds or additional activities for removing or controlling aquaticnoxious weeds not governed by ((subsection (1) or (2) of this section))sections 303 (1) and (2) of this act and shall produce and distribute 9 one or more pamphlets describing these methods of removal or control.Such a pamphlet serves as the ((hydraulic project approval)) permit forany project that is conducted solely for the removal or control of suchaquatic noxious weeds and that is conducted as described in thepamphlet((;)). No further ((hydraulic project approval)) permit isrequired for such a project. (((4) As used in this section, "spartina," "purple loosestrife,"and "aquatic noxious weeds" have the meanings prescribed by RCW17.26.020. (5))) (3) Nothing in this section shall prohibit the department((of fish and wildlife)) from requiring a ((hydraulic projectapproval)) permit for those parts of hydraulic projects that are notspecifically for the control or removal of spartina, purpleloosestrife, or other aquatic noxious weeds.Sec. RCW 77.55.270 and 1997 c 415 s 2 are each amended toread as follows: (1) Small scale prospecting and mining shall not require ((writtenapproval)) a permit under this chapter if the prospecting is conductedin accordance with ((provisions)) rules established by the department. (2) By December 31, 1998, the department shall adopt rulesapplicable to small scale prospecting and mining activities subject tothis section. The department shall develop the rules in cooperationwith the recreational mining community and other interested parties. (3) Within two months of adoption of the rules, the departmentshall distribute an updated gold and fish pamphlet that describesmethods of mineral prospecting that are consistent with thedepartment's rule. The pamphlet shall be written to clearly indicatethe prospecting methods that require ((written approval)) a permitunder this chapter and the prospecting methods that require compliancewith the pamphlet. To the extent possible, the department shall usethe provisions of the gold and fish pamphlet to minimize the number ofspecific provisions of a written ((approval)) permit issued under thischapter. (((4) For the purposes of this chapter, "small scale prospectingand mining" means only the use of the following methods: Pans, 10 nonmotorized sluice boxes, concentrators, and minirocker boxes for thediscovery and recovery of minerals.))Sec. RCW 77.55.280 and 2001 c 253 s 54 are each amended toread as follows: When a private landowner is applying for ((hydraulic projectapproval)) a permit under this chapter and that landowner has enteredinto a habitat incentives agreement with the department and thedepartment of natural resources as provided in RCW 77.55.300 (asrecodified by this act), the department shall comply with the terms ofthat agreement when evaluating the request for ((hydraulic projectapproval)) a permit.Sec. RCW 77.55.300 and 2000 c 107 s 229 are each amended toread as follows: (1) Beginning in January 1998, the department ((of fish andwildlife)) and the department of natural resources shall implement ahabitat incentives program based on the recommendations of federallyrecognized Indian tribes, landowners, the regional fisheriesenhancement groups, the timber, fish, and wildlife cooperators, andother interested parties. The program shall allow a private landownerto enter into an agreement with the departments to enhance habitat onthe landowner's property for food fish, game fish, or other wildlifespecies. In exchange, the landowner shall receive state regulatorycertainty with regard to future applications for ((hydraulic projectapproval)) a permit or a forest practices permit on the propertycovered by the agreement. The overall goal of the program is toprovide a mechanism that facilitates habitat development on privateproperty while avoiding an adverse state regulatory impact to thelandowner at some future date. A single agreement between thedepartments and a landowner may encompass up to one thousand acres. Alandowner may enter into multiple agreements with the departments,provided that the total acreage covered by such agreements with asingle landowner does not exceed ten thousand acres. The departmentsare not obligated to enter into an agreement unless the departmentsfind that the agreement is in the best interest of protecting fish orwildlife species or their habitat. 11 (2) A habitat incentives agreement shall be in writing and shallcontain at least the following: (a) A description of the propertycovered by the agreement((,)); (b) an expiration date((,)); (c) adescription of the condition of the property prior to theimplementation of the agreement((,)); and (d) other information neededby the landowner and the departments for future reference anddecisions. (3) As part of the agreement, the department ((of fish andwildlife)) may stipulate the factors that will be considered when thedepartment evaluates a landowner's application for ((hydraulic projectapproval under RCW 77.55.100 or 77.55.110)) a permit on propertycovered by the agreement. The department's identification of theseevaluation factors shall be in concurrence with the department ofnatural resources and affected federally recognized Indian tribes. Ingeneral, future decisions related to the issuance, conditioning, ordenial of ((hydraulic project approval shall)) a permit must be basedon the conditions present on the landowner's property at the time ofthe agreement, unless all parties agree otherwise. (4) As part of the agreement, the department of natural resourcesmay stipulate the factors that will be considered when the departmentof natural resources evaluates a landowner's application for a forestpractices permit under chapter 76.09 RCW on property covered by theagreement. The ((department's)) department of natural resources'identification of these evaluation factors shall be in concurrence withthe department ((of fish and wildlife)) and affected federallyrecognized Indian tribes. In general, future decisions related to theissuance, conditioning, or denial of forest practices permits shall bebased on the conditions present on the landowner's property at the timeof the agreement, unless all parties agree otherwise. (5) The agreement is binding on and may be used by only thelandowner who entered into the agreement with the department. Theagreement shall not be appurtenant with the land. However, if a newlandowner chooses to maintain the habitat enhancement efforts on theproperty, the new landowner and the departments may jointly choose toretain the agreement on the property. (6) If the departments receive multiple requests for agreements 12 with private landowners under the habitat incentives program, thedepartments shall prioritize these requests and shall enter into asmany agreements as possible within available budgetary resources.Sec. RCW 77.55.130 and 2000 c 107 s 18 are each amended toread as follows: The department and the department of ecology will workcooperatively with the United States army corps of engineers to developa memorandum of agreement outlining dike vegetation managementguidelines so that dike owners are eligible for coverage under P.L.8499, and state requirements established pursuant to ((RCW 77.55.100and 77.55.110)) section 202 of this act are met.PART 5SPECIAL PERMITSSec. RCW 77.55.200 and 1991 c 279 s 1 are each amended toread as follows: (1) In order to protect the property of marine waterfront shorelineowners it is necessary to facilitate issuance of ((hydraulic)) permitsfor bulkheads or rockwalls under certain conditions. (2) The department shall issue a ((hydraulic)) permit with orwithout conditions within fortyfive days of receipt of a complete andaccurate application which authorizes commencement of construction,replacement, or repair of a marine beach front protective bulkhead orrockwall for singlefamily type residences or property under thefollowing conditions: (a) The waterward face of a new bulkhead or rockwall shall belocated only as far waterward as is necessary to excavate for footingsor place base rock for the structure and under no conditions shall belocated more than six feet waterward of the ordinary high water line; (b) Any bulkhead or rockwall to replace or repair an existingbulkhead or rockwall shall be placed along the same alignment as thebulkhead or rockwall it is replacing((;)). However, the replaced orrepaired bulkhead or rockwall may be placed waterward of and directlyabutting the existing structure only in cases where removal of the 13 existing bulkhead or rockwall would result in environmental degradationor removal problems related to geological, engineering, or safetyconsiderations; and (c) Construction of a new bulkhead or rockwall, or replacement orrepair of an existing bulkhead or rockwall waterward of the existingstructure shall not result in the permanent loss of critical food fishor shellfish habitats; and (d) Timing constraints shall be applied on a casebycase basis forthe protection of critical habitats, including but not limited tomigration corridors, rearing and feeding areas, and spawning habitats,for the proper protection of fish life. (3) Any bulkhead or rockwall construction, replacement, or repairnot meeting the conditions in this section shall be processed underthis chapter in the same manner as any other application. (4) Any person aggrieved by the approval, denial, conditioning, ormodification of a ((hydraulic)) permit ((approval)) under this sectionmay formally appeal the decision to the ((hydraulic appeals)) boardpursuant to this chapter.Sec. RCW 77.55.220 and 2002 c 368 s 7 are each amended toread as follows: (1) ((The definitions in this subsection apply throughout thissection unless the context clearly requires otherwise. (a) "Marina" means a public or private facility providing boatmoorage space, fuel, or commercial services. Commercial servicesinclude but are not limited to overnight or liveaboard boatingaccommodations. (b) "Marine terminal" means a public or private commercial wharflocated in the navigable water of the state and used, or intended to beused, as a port or facility for the storing, handling, transferring, ortransporting of goods to and from vessels. (2))) For a marina or marine terminal in existence on June 6, 1996,or a marina or marine terminal that has received a ((hydraulic projectapproval)) permit for its initial construction, a renewable, fiveyear((hydraulic project approval)) permit shall be issued, upon request,for regular maintenance activities of the marina or marine terminal. 14 (((3))) (2) Upon construction of a new marina or marine terminalthat has received ((hydraulic project approval)) a permit, a renewable,fiveyear ((hydraulic project approval)) permit shall be issued, uponrequest, for regular maintenance activities of the marina or marineterminal. (((4))) (3) For the purposes of this section, regular maintenanceactivities are only those activities necessary to restore the marina ormarine terminal to the conditions approved in the initial ((hydraulicproject approval)) permit. These activities may include, but are notlimited to, dredging, piling replacement, and float replacement. (((5))) (4) The fiveyear permit must include a requirement that afourteenday notice be given to the department before regularmaintenance activities begin.Sec. RCW 77.55.340 and 2002 c 368 s 4 are each amended toread as follows: (1) Notwithstanding any other provision of this chapter, all((hydraulic project approvals)) permits related to storm waterdischarges must follow the provisions established in this section. (2) ((Hydraulic project approvals)) Permits issued in locationscovered by a national pollution discharge elimination system municipalstorm water general permit may not be conditioned or denied for waterquality or quantity impacts arising from storm water discharges. A((hydraulic project approval)) permit is required only for the actualconstruction of any storm water outfall or associated structurespursuant to this chapter. (3)(a) In locations not covered by a national pollution dischargeelimination system municipal storm water general permit, the departmentmay issue ((hydraulic project approvals)) permits that containprovisions that protect fish life from adverse effects, such asscouring or erosion of the bed of the water body, resulting from thedirect hydraulic impacts of the discharge. (b) Prior to the issuance of a ((hydraulic project approval))permit issued under this subsection (3), the department must: (i) Make a finding that the discharge from the outfall will causeharmful effects to fish life; 15 (ii) Transmit the findings to the applicant and to the city orcounty where the project is being proposed; and (iii) Allow the applicant an opportunity to use local ordinances orother mechanisms to avoid the adverse effects resulting from the directhydraulic discharge. The fortyfive day requirement for ((hydraulicproject approval)) permit issuance ((pursuant to RCW 77.55.100)) undersection 201 of this act is suspended during the time period thedepartment is meeting the requirements of this subsection (3)(b). (c) After following the procedures set forth in (b) of thissubsection, the department may issue a ((hydraulic project approval))permit that prescribes the discharge rates from an outfall structurethat will prevent adverse effects to the bed or flow of the waterway.The department may recommend, but not specify, the measures required tomeet these discharge rates. The department may not require changes tothe project design above the mean higher high water mark of marinewaters, or the ordinary high water mark of freshwaters of the state.Nothing in this section alters any authority the department may have toregulate other types of projects under this chapter.Sec. RCW 77.55.210 and 1995 c 378 s 14 are each amended toread as follows: A ((hydraulic project approval)) permit required by the departmentfor a watershed restoration project as defined in RCW 89.08.460 shallbe processed in compliance with RCW 89.08.450 through 89.08.510.Sec. RCW 77.55.290 and 2001 c 253 s 55 are each amended toread as follows: (1) In order to receive the permit review and approval processcreated in this section, a fish habitat enhancement project must meetthe criteria under (a) and (b) of this subsection: (a) A fish habitat enhancement project must be a project toaccomplish one or more of the following tasks: (i) Elimination of humanmade fish passage barriers, includingculvert repair and replacement; (ii) Restoration of an eroded or unstable streambank employing theprinciple of bioengineering, including limited use of rock as a 16 stabilization only at the toe of the bank, and with primary emphasis onusing native vegetation to control the erosive forces of flowing water;or (iii) Placement of woody debris or other instream structures thatbenefit naturally reproducing fish stocks. The department shall develop size or scale threshold tests todetermine if projects accomplishing any of these tasks should beevaluated under the process created in this section or under otherproject review and approval processes. A project proposal shall not bereviewed under the process created in this section if the departmentdetermines that the scale of the project raises concerns regardingpublic health and safety; and (b) A fish habitat enhancement project must be approved in one ofthe following ways: (i) By the department pursuant to chapter 77.95 or 77.100 RCW; (ii) By the sponsor of a watershed restoration plan as provided inchapter 89.08 RCW; (iii) By the department as a departmentsponsored fish habitatenhancement or restoration project; (iv) Through the review and approval process for the jobs for theenvironment program; (v) Through the review and approval process for conservationdistrictsponsored projects, where the project complies with designstandards established by the conservation commission throughinteragency agreement with the United States fish and wildlife serviceand the natural resource conservation service; (vi) Through a formal grant program established by the legislatureor the department for fish habitat enhancement or restoration; and (vii) Through other formal review and approval processesestablished by the legislature. (2) Fish habitat enhancement projects meeting the criteria ofsubsection (1) of this section are expected to result in beneficialimpacts to the environment. Decisions pertaining to fish habitatenhancement projects meeting the criteria of subsection (1) of thissection and being reviewed and approved according to the provisions ofthis section are not subject to the requirements of RCW43.21C.030(2)(c). 17 (3) ((Hydraulic project approval)) (a) A permit is required forprojects that meet the criteria of subsection (1) of this section andare being reviewed and approved under this section. An applicant shalluse a joint aquatic resource permit application form developed by the((department of ecology)) permit assistance center to apply forapproval under this chapter. On the same day, the applicant shallprovide copies of the completed application form to the department andto each appropriate local government. Local governments shall acceptthe application as notice of the proposed project. The departmentshall provide a fifteenday comment period during which it will receivecomments regarding environmental impacts. ((In no more than)) Withinfortyfive days, the department shall either issue ((hydraulic projectapproval)) a permit, with or without conditions, deny approval, or makea determination that the review and approval process created by thissection is not appropriate for the proposed project. The departmentshall base this determination on identification during the commentperiod of adverse impacts that cannot be mitigated by ((hydraulicproject approval)) the conditioning of a permit. If the departmentdetermines that the review and approval process created by this sectionis not appropriate for the proposed project, the department shallnotify the applicant and the appropriate local governments of itsdetermination. The applicant may reapply for approval of the projectunder other review and approval processes. (b) Any person aggrieved by the approval, denial, conditioning, ormodification of ((hydraulic project approval)) a permit under thissection may formally appeal the decision to the ((hydraulic appeals))board pursuant to the provisions of this chapter. (4) No local government may require permits or charge fees for fishhabitat enhancement projects that meet the criteria of subsection (1)of this section and that are reviewed and approved according to theprovisions of this section.Sec. RCW 77.55.160 and 1998 c 190 s 89 are each amended toread as follows: (1) Except for the north fork of the Lewis river and the WhiteSalmon river, all streams and rivers tributary to the Columbia riverdownstream from McNary dam are established as an anadromous fish 18 sanctuary. This sanctuary is created to preserve and develop the foodfish and game fish resources in these streams and rivers and to protectthem against undue industrial encroachment. (2) Within the sanctuary area: (a) The department shall not issue ((hydraulic project approval))a permit to construct a dam greater than twentyfive feet high withinthe migration range of anadromous fish as determined by the department. (b) A person shall not divert water from rivers and streams inquantities that will reduce the respective stream flow below the annualaverage low flow, based upon data published in United States geologicalsurvey reports. (3) The commission may acquire and abate a dam or otherobstruction, or acquire any water right vested on a sanctuary stream orriver, which is in conflict with the provisions of subsection (2) ofthis section. (4) Subsection (2)(a) of this section does not apply to thesediment retention structure to be built on the North Fork Toutle riverby the United States army corps of engineers.NEW SECTION.Sec. A landscape management plan approved bythe department and the department of natural resources under RCW76.09.350(2) shall serve as a permit for the life of the plan if fishare selected as one of the public resources for coverage under such aplan.Sec. RCW 77.55.010 and 1993 sp.s. c 2 s 28 are each amendedto read as follows: The department ((of fish and wildlife)), the department of ecology,and the department of natural resources shall jointly develop aninformational brochure that describes when permits and any otherauthorizations are required for flood damage prevention and reductionprojects, and recommends ways to best proceed through the variousregulatory permitting processes.NEW SECTION.Sec. (1) The department shall, at the requestof a county, develop fiveyear maintenance permit agreements,consistent with comprehensive flood control management plans adopted 19 under the authority of RCW 86.12.200, or other watershed plan approvedby a county legislative authority, to allow for work on public andprivate property for bank stabilization, bridge repair, removal ofsandbars and debris, channel maintenance, and other flood damage repairand reduction activity under agreedupon conditions and times withoutobtaining permits for specific projects. (2) The department shall, at the request of any person orgovernment agency, develop a renewable fiveyear maintenance permitagreement or a permit mitigation agreement to allow for work on publicand private property for bank stabilization, bridge repair, removal ofsandbars and debris, channel maintenance, and other flood damage repairand reduction activity under reasonable, agreedupon conditions andtimes without obtaining permits for specific projects.PART 6DENIAL OR CONDITIONING OF PERMITSec. RCW 77.55.350 and 2002 c 368 s 5 are each amended toread as follows: Conditions imposed upon ((hydraulic project approvals)) a permitmust be reasonably related to the project. The permit conditions mustensure that the project provides proper protection for fish life, butthe department may not impose conditions that attempt to optimizeconditions for fish life that are out of proportion to the impact ofthe proposed project.Sec. RCW 77.55.230 and 1996 c 276 s 1 are each amended toread as follows: (1) The legislature finds that the construction of hydraulicprojects may require mitigation for the protection of fish life, andthat the mitigation may be most costeffective and provide the mostbenefit to the fish resource if the mitigation is allowed to be appliedin locations that are offsite of the hydraulic project location. Thedepartment may approve offsite mitigation plans that are submitted byhydraulic project permit applicants. (2) If a hydraulic project permit applicant proposes offsitemitigation and the department does not approve the hydraulic permit or 20 conditions the permit approval in such a manner as to render offsitemitigation unpracticable, the hydraulic project proponent must be giventhe opportunity to submit the hydraulic project permit application tothe ((hydraulic appeals)) board for approval.Sec. RCW 77.55.090 and 2000 c 107 s 15 are each amended toread as follows: When reviewing a mitigation plan under ((RCW 77.55.100 or77.55.110)) section 201 of this act, the department shall, at therequest of the project proponent, follow the guidance contained in RCW90.74.005 through 90.74.030.Sec. RCW 77.55.120 and 2000 c 107 s 17 are each amended toread as follows: Whenever the placement of woody debris is required as a conditionof a ((hydraulic)) permit ((approval)) issued ((pursuant to RCW77.55.100 or 77.55.110)) under section 201 of this act, the department,upon request, shall invite comment regarding that placement from thelocal governmental authority, affected tribes, affected federal andstate agencies, and the project applicant.Sec. RCW 77.55.250 and 2000 c 107 s 21 are each amended toread as follows: The department may not require mitigation for adverse impacts onfish life or habitat that occurred at the time a wetland was filled, ifthe wetland was filled ((under the provisions of RCW 75.20.300)) priorto 1995 for flood control and dredging projects located in the Cowlitzriver from mile twentytwo to the confluence with the Columbia river,and in the Toutle river from the mouth to the North Fork Toutlesediment dam site at North Fork mile twelve, and to river mile three onthe South Fork Toutle river, and volcanoaffected areas of the Columbiariver.PART 7PENALTIES 21 Sec. RCW 77.55.140 and 2000 c 107 s 19 are each amended toread as follows: (1) The department may levy civil penalties of up to one hundreddollars per day for violation of any provisions of ((RCW 77.55.100 or77.55.110)) section 201 of this act. The penalty provided shall beimposed by notice in writing, either by certified mail or personalservice to the person incurring the penalty, from the director or thedirector's designee describing the violation. (2) Any person incurring any penalty under this chapter may appealthe same under chapter 34.05 RCW to the director. Appeals shall befiled within thirty days of receipt of notice imposing any penalty. (3) The penalty imposed shall become due and payable thirty daysafter receipt of a notice imposing the penalty unless an appeal isfiled. Whenever an appeal of any penalty incurred under this chapteris filed, the penalty shall become due and payable only upon completionof all review proceedings and the issuance of a final order confirmingthe penalty in whole or in part. (4) If the amount of any penalty is not paid within thirty daysafter it becomes due and payable, the attorney general, upon therequest of the director, shall bring an action in the name of the stateof Washington in the superior court of Thurston county or of any countyin which such violator may do business, to recover such penalty. Inall such actions the procedure and rules of evidence shall be the sameas an ordinary civil action. All penalties recovered under thissection shall be paid into the state's general fund.PART 8APPEALSNEW SECTION.Sec. (1) An expedited dispute resolutionprocess is created to resolve disputes regarding permits issued ordenied under this chapter. The expedited dispute resolution processmay be initiated by a project applicant at any point prior to issuanceor denial of the final permit. The fortyfive day period for permitissuance or denial shall not be suspended while the dispute isresolved. 22 (2) When a project applicant requests the expedited disputeresolution process, the department must convene an expedited disputeresolution process committee within fourteen days. The expediteddispute resolution process committee consists of four members: (a) The project contractor or engineer; (b) A department engineer; (c) The department's regional program manager; and (d) An engineer or public works official designated by the localgovernment with jurisdiction over the project. (3) The expedited dispute resolution process committee must conducta project review to determine whether the conditions in the proposedpermit are reasonable and necessary to protect fish life. By majorityvote, the committee may accept the permit conditions, reject the permitconditions and return the permit to the department for subsequentreview, or determine alternative conditions to be included in the finalpermit. (4) The department must provide to each project applicant notice ofthe applicant's right to an expedited dispute resolution process, andthe procedures for informal and formal appeal. This information mustalso include: (a) Contact information for the department employee who will bereviewing the project; (b) Contact information for the department's regional programmanager responsible for overseeing the regional hydraulic projectactivities at any point prior to the approval or denial of a permit; (c) The proper address to which requests for expedited disputeresolution must be sent; and (d) The proper address to which informal or formal appeals must besent.NEW SECTION.Sec. (1) Issuance, denial, conditioning, ormodification of a permit is appealable to the board within thirty daysof the notice of decision. (2) The burden of proof shall be upon the department to show thatthe denial or conditioning of a permit is solely aimed at theprotection of fish life. 23 Sec. RCW 77.55.170 and 2000 c 107 s 20 are each amended toread as follows: (1) There is ((hereby)) created within the environmental hearingsoffice under RCW 43.21B.005 the hydraulic appeals board of the state ofWashington. (2) The hydraulic appeals board ((shall)) consists of threemembers: The director of the department of ecology or the director'sdesignee, the director of the department of agriculture or thedirector's designee, and the director or the director's designee of thedepartment ((whose action is appealed under subsection (6) of thissection)). A decision must be agreed to by at least two members of theboard to be final. (3) The board may adopt rules necessary for the conduct of itspowers and duties or for transacting other official business. (4) The board shall make findings of fact and prepare a writtendecision in each case decided by it((, and that)). The finding anddecision shall be effective upon being signed by two or more boardmembers and upon being filed at the hydraulic appeals board's principaloffice, and shall be open to public inspection at all reasonable times. (5) The board has exclusive jurisdiction to hear appeals arisingfrom the approval, denial, conditioning, or modification of a((hydraulic approval)) permit issued by the department((: (a) Underthe authority granted in RCW 77.55.110 for the diversion of water foragricultural irrigation or stock watering purposes or when associatedwith streambank stabilization to protect farm and agricultural land asdefined in RCW 84.34.020; or (b) under the authority granted in RCW77.55.230 for offsite mitigation proposals)). (6)(a) Any person aggrieved by the approval, denial, conditioning,or modification of a ((hydraulic approval pursuant to RCW 77.55.110))permit under section 201 of this act may seek review from the board byfiling a request for the same within thirty days of notice of theapproval, denial, conditioning, or modification of ((such approval))the permit. (b) The review proceedings authorized in (a) of this subsection aresubject to the provisions of chapter 34.05 RCW pertaining to proceduresin adjudicative proceedings. 24 Sec. RCW 77.55.180 and 1995 c 382 s 7 are each amended toread as follows: (1) In all appeals, the ((hydraulic appeals)) board shall have allpowers relating to administration of oaths, issuance of subpoenas, andtaking of depositions, but such powers shall be exercised in conformitywith chapter 34.05 RCW. (2) In all appeals, the ((hydraulic appeals)) board, and eachmember thereof, shall be subject to all duties imposed upon and shallhave all powers granted to, an agency by those provisions of chapter34.05 RCW relating to adjudicative proceedings. (3) All proceedings before the ((hydraulic appeals)) board or anyof its members shall be conducted in accordance with such rules ofpractice and procedure as the board may prescribe. Such rules shall bepublished and distributed. (4) Judicial review of a decision of the ((hydraulic appeals))board may be obtained only pursuant to RCW 34.05.510 through 34.05.598.PART 9FISHWAYS, FLOW, AND SCREENINGSec. RCW 77.55.040 and 1998 c 190 s 85 are each amended toread as follows: (1) A diversion device used for conducting water from a lake,river, or stream for any purpose shall be equipped with a fish guardapproved by the director to prevent the passage of fish into thediversion device. The fish guard shall be maintained at all times whenwater is taken into the diversion device. The fish guards shall beinstalled at places and times prescribed by the director upon thirtydays' notice to the owner of the diversion device. (2) Each day the diversion device is not equipped with an approvedfish guard is a separate offense. If within thirty days after noticeto equip a diversion device the owner fails to do so, the director maytake possession of the diversion device and close the device until itis properly equipped. Expenses incurred by the department constitutethe value of a lien upon the diversion device and upon the real andpersonal property of the owner. Notice of the lien shall be filed and 25 recorded in the office of the county auditor of the county in which theaction is taken.Sec. RCW 77.55.050 and 1993 sp.s. c 2 s 29 are each amendedto read as follows: It is the policy of this state that a flow of water sufficient tosupport game fish and food fish populations be maintained at all timesin the streams of this state. The director of ecology shall give the director notice of eachapplication for a permit to divert or store water. The director hasthirty days after receiving the notice to state his or her objectionsto the application. The permit shall not be issued until the thirtyday period has elapsed. The director of ecology may refuse to issue a permit if, in theopinion of the director of ecology, issuing the permit might result inlowering the flow of water in a stream below the flow necessary toadequately support food fish and game fish populations in the stream. The provisions of this section shall in no way affect existingwater rights.Sec. RCW 77.55.060 and 1998 c 190 s 86 are each amended toread as follows: (1) A dam or other obstruction across or in a stream shall beprovided with a durable and efficient fishway approved by the director.Plans and specifications shall be provided to the department prior tothe director's approval. The fishway shall be maintained in aneffective condition and continuously supplied with sufficient water tofreely pass fish. (2) If a person fails to construct and maintain a fishway or toremove the dam or obstruction in a manner satisfactory to the director,then within thirty days after written notice to comply has been servedupon the owner, his or her agent, or the person in charge, the directormay construct a fishway or remove the dam or obstruction. Expensesincurred by the department constitute the value of a lien upon the damand upon the personal property of the person owning the dam. Notice ofthe lien shall be filed and recorded in the office of the county 26 auditor of the county in which the dam or obstruction is situated. Thelien may be foreclosed in an action brought in the name of the state. (3) If, within thirty days after notice to construct a fishway orremove a dam or obstruction, the owner, his or her agent, or the personin charge fails to do so, the dam or obstruction is a public nuisanceand the director may take possession of the dam or obstruction anddestroy it. No liability shall attach for the destruction.Sec. RCW 77.55.320 and 2001 c 253 s 48 are each amended toread as follows: (1) A person shall not divert water from a lake, river, or streamcontaining game fish unless the water diversion device is equipped ator near its intake with a fish guard or screen to prevent the passageof game fish into the device and, if necessary, with a means ofreturning game fish from immediately in front of the fish guard orscreen to the waters of origin. A person who was, on June 11, 1947,otherwise lawfully diverting water from a lake, river, or stream shallnot be deemed guilty of a violation of this section. (2) Plans for the fish guard, screen, and bypass shall be approvedby the director prior to construction. The installation shall beapproved by the director prior to the diversion of water. (3) The director or the director's designee may close a waterdiversion device operated in violation of this section and keep itclosed until it is properly equipped with a fish guard, screen, orbypass.PART 10MISCELLANEOUSNEW SECTION.Sec. The following sections are each codifiedor recodified in chapter 77.55 RCW in the following order: Section 101 of this act Section 102 of this act Section 201 of this act Section 202 of this act Section 203 of this act Section 301 of this act 27 RCW 77.55.330 Section 303 of this act RCW 77.55.030 RCW 77.55.360 RCW 77.55.150 RCW 77.55.270 RCW 77.55.020 RCW 77.55.280 RCW 77.55.300 RCW 77.55.130 RCW 77.55.200 RCW 77.55.220 RCW 77.55.340 RCW 77.55.210 RCW 77.55.290 RCW 77.55.160 Section 507 of this act RCW 77.55.010 Section 509 of this act RCW 77.55.350 RCW 77.55.230 RCW 77.55.090 RCW 77.55.120 RCW 77.55.260 RCW 77.55.250 RCW 77.55.140 Section 801 of this act Section 802 of this act RCW 77.55.170 RCW 77.55.180.NEW SECTION.Sec. The following sections are eachrecodified as a new chapter in Title 77 RCW in the following order: RCW 77.55.040 RCW 77.55.050 RCW 77.55.060 RCW 77.55.070 28 RCW 77.55.080 RCW 77.55.310 RCW 77.55.320 RCW 77.55.240.Sec. RCW 76.09.050 and 2002 c 121 s 1 are each amended toread as follows: (1) The board shall establish by rule which forest practices shallbe included within each of the following classes: Class I: Minimal or specific forest practices that have no directpotential for damaging a public resource and that may be conductedwithout submitting an application or a notification except that whenthe regulating authority is transferred to a local governmental entity,those Class I forest practices that involve timber harvesting or roadconstruction within "urban growth areas," designated pursuant tochapter 36.70A RCW, are processed as Class IV forest practices, but arenot subject to environmental review under chapter 43.21C RCW; Class II: Forest practices which have a less than ordinarypotential for damaging a public resource that may be conducted withoutsubmitting an application and may begin five calendar days, or suchlesser time as the department may determine, after written notificationby the operator, in the manner, content, and form as prescribed by thedepartment, is received by the department. However, the work may notbegin until all forest practice fees required under RCW 76.09.065 havebeen received by the department. Class II shall not include forestpractices: (a) On lands platted after January 1, 1960, as provided in chapter58.17 RCW or on lands that have or are being converted to another use; (b) Which require approvals under the provisions of the hydraulicsact, ((RCW 77.55.100)) section 201 of this act; (c) Within "shorelines of the state" as defined in RCW 90.58.030; (d) Excluded from Class II by the board; or (e) Including timber harvesting or road construction within "urbangrowth areas," designated pursuant to chapter 36.70A RCW, which areClass IV; Class III: Forest practices other than those contained in Class I,II, or IV. A Class III application must be approved or disapproved by 29 the department within thirty calendar days from the date the departmentreceives the application. However, the applicant may not begin work onthat forest practice until all forest practice fees required under RCW76.09.065 have been received by the department; Class IV: Forest practices other than those contained in Class Ior II: (a) On lands platted after January 1, 1960, as provided inchapter 58.17 RCW, (b) on lands that have or are being converted toanother use, (c) on lands which, pursuant to RCW 76.09.070 as now orhereafter amended, are not to be reforested because of the likelihoodof future conversion to urban development, (d) involving timberharvesting or road construction on lands that are contained within"urban growth areas," designated pursuant to chapter 36.70A RCW, exceptwhere the forest landowner provides: (i) A written statement of intentsigned by the forest landowner not to convert to a use other thancommercial forest product operations for ten years, accompanied byeither a written forest management plan acceptable to the department ordocumentation that the land is enrolled under the provisions of chapter84.33 RCW; or (ii) a conversion option harvest plan approved by thelocal governmental entity and submitted to the department as part ofthe application, and/or (e) which have a potential for a substantialimpact on the environment and therefore require an evaluation by thedepartment as to whether or not a detailed statement must be preparedpursuant to the state environmental policy act, chapter 43.21C RCW.Such evaluation shall be made within ten days from the date thedepartment receives the application: PROVIDED, That nothing hereinshall be construed to prevent any local or regional governmental entityfrom determining that a detailed statement must be prepared for anaction pursuant to a Class IV forest practice taken by thatgovernmental entity concerning the land on which forest practices willbe conducted. A Class IV application must be approved or disapprovedby the department within thirty calendar days from the date thedepartment receives the application, unless the department determinesthat a detailed statement must be made, in which case the applicationmust be approved or disapproved by the department within sixty calendardays from the date the department receives the application, unless thecommissioner of public lands, through the promulgation of a formalorder, determines that the process cannot be completed within such 30 period. However, the applicant may not begin work on that forestpractice until all forest practice fees required under RCW 76.09.065have been received by the department. Forest practices under Classes I, II, and III are exempt from therequirements for preparation of a detailed statement under the stateenvironmental policy act. (2) Except for those forest practices being regulated by localgovernmental entities as provided elsewhere in this chapter, no ClassII, Class III, or Class IV forest practice shall be commenced orcontinued after January 1, 1975, unless the department has received anotification with regard to a Class II forest practice or approved anapplication with regard to a Class III or Class IV forest practicecontaining all information required by RCW 76.09.060 as now orhereafter amended. However, in the event forest practices regulationsnecessary for the scheduled implementation of this chapter and RCW90.48.420 have not been adopted in time to meet such schedules, thedepartment shall have the authority to regulate forest practices andapprove applications on such terms and conditions consistent with thischapter and RCW 90.48.420 and the purposes and policies of RCW76.09.010 until applicable forest practices regulations are in effect. (3) Except for those forest practices being regulated by localgovernmental entities as provided elsewhere in this chapter, if anotification or application is delivered in person to the department bythe operator or the operator's agent, the department shall immediatelyprovide a dated receipt thereof. In all other cases, the departmentshall immediately mail a dated receipt to the operator. (4) Except for those forest practices being regulated by localgovernmental entities as provided elsewhere in this chapter, forestpractices shall be conducted in accordance with the forest practicesregulations, orders and directives as authorized by this chapter or theforest practices regulations, and the terms and conditions of anyapproved applications. (5) Except for those forest practices being regulated by localgovernmental entities as provided elsewhere in this chapter, thedepartment of natural resources shall notify the applicant in writingof either its approval of the application or its disapproval of theapplication and the specific manner in which the application fails to 31 comply with the provisions of this section or with the forest practicesregulations. Except as provided otherwise in this section, if thedepartment fails to either approve or disapprove an application or anyportion thereof within the applicable time limit, the application shallbe deemed approved and the operation may be commenced: PROVIDED, Thatthis provision shall not apply to applications which are neitherapproved nor disapproved pursuant to the provisions of subsection (7)of this section: PROVIDED, FURTHER, That if seasonal field conditionsprevent the department from being able to properly evaluate theapplication, the department may issue an approval conditional uponfurther review within sixty days: PROVIDED, FURTHER, That thedepartment shall have until April 1, 1975, to approve or disapprove anapplication involving forest practices allowed to continue to April 1,1975, under the provisions of subsection (2) of this section. Uponreceipt of any notification or any satisfactorily completed applicationthe department shall in any event no later than two business days aftersuch receipt transmit a copy to the departments of ecology and fish andwildlife, and to the county, city, or town in whose jurisdiction theforest practice is to be commenced. Any comments by such agenciesshall be directed to the department of natural resources. (6) For those forest practices regulated by the board and thedepartment, if the county, city, or town believes that an applicationis inconsistent with this chapter, the forest practices regulations, orany local authority consistent with RCW 76.09.240 as now or hereafteramended, it may so notify the department and the applicant, specifyingits objections. (7) For those forest practices regulated by the board and thedepartment, the department shall not approve portions of applicationsto which a county, city, or town objects if: (a) The department receives written notice from the county, city,or town of such objections within fourteen business days from the timeof transmittal of the application to the county, city, or town, or oneday before the department acts on the application, whichever is later;and (b) The objections relate to lands either: (i) Platted after January 1, 1960, as provided in chapter 58.17RCW; or 32 (ii) On lands that have or are being converted to another use. The department shall either disapprove those portions of suchapplication or appeal the county, city, or town objections to theappeals board. If the objections related to subparagraphs (b)(i) and(ii) of this subsection are based on local authority consistent withRCW 76.09.240 as now or hereafter amended, the department shalldisapprove the application until such time as the county, city, or townconsents to its approval or such disapproval is reversed on appeal.The applicant shall be a party to all department appeals of county,city, or town objections. Unless the county, city, or town eitherconsents or has waived its rights under this subsection, the departmentshall not approve portions of an application affecting such lands untilthe minimum time for county, city, or town objections has expired. (8) For those forest practices regulated by the board and thedepartment, in addition to any rights under the above paragraph, thecounty, city, or town may appeal any department approval of anapplication with respect to any lands within its jurisdiction. Theappeals board may suspend the department's approval in whole or in partpending such appeal where there exists potential for immediate andmaterial damage to a public resource. (9) For those forest practices regulated by the board and thedepartment, appeals under this section shall be made to the appealsboard in the manner and time provided in RCW 76.09.220(8). In suchappeals there shall be no presumption of correctness of either thecounty, city, or town or the department position. (10) For those forest practices regulated by the board and thedepartment, the department shall, within four business days notify thecounty, city, or town of all notifications, approvals, and disapprovalsof an application affecting lands within the county, city, or town,except to the extent the county, city, or town has waived its right tosuch notice. (11) For those forest practices regulated by the board and thedepartment, a county, city, or town may waive in whole or in part itsrights under this section, and may withdraw or modify any such waiver,at any time by written notice to the department. 33 Sec. RCW 77.12.865 and 2002 c 20 s 2 are each amended toread as follows: (1) As used in this section and RCW 77.12.870, "derelict fishinggear" includes lost or abandoned fishing nets, fishing lines, crabpots, shrimp pots, and other commercial and recreational fishingequipment. The term does not include lost or abandoned vessels. (2) The department, in partnership with the Northwest straitscommission, the department of natural resources, and other interestedparties, must publish guidelines for the safe removal and disposal ofderelict fishing gear. The guidelines must be completed by August 31,2002, and made available to any person interested in derelict fishinggear removal. (3) Derelict fishing gear removal conducted in accordance with theguidelines prepared in subsection (2) of this section is not subject topermitting under ((RCW 77.55.100)) section 201 of this act.Sec. RCW 77.65.250 and 2000 c 107 s 46 are each amended toread as follows: A hardshell clam mechanical harvester fishery license is requiredto operate a mechanical or hydraulic device for commercially harvestingclams, other than geoduck clams, unless the requirements of ((RCW77.55.100)) section 201 of this act are fulfilled for the proposedactivity.NEW SECTION.Sec. The following acts or parts of acts areeach repealed: RCW 77.55.100 (Hydraulic projects or other workPlans andspecificationsPermitsApprovalEmergencies) and 2002 c 368 s 2,2000 c 107 s 16, & 1998 c 190 s 87; RCW 77.55.110 (Hydraulic projects for irrigation, stockwatering, or streambank stabilizationPlans and specificationsApprovalEmergencies) and 2002 c 368 s 3, 1998 c 190 s 88, 1993 sp.s.c 2 s 32, 1991 c 322 s 31, 1988 c 272 s 2, 1988 c 36 s 34, & 1986 c 173s 2; and RCW 77.55.190 (Processing of permits or authorizations foremergency water withdrawal and facilities to be expedited) and 1989 c171 s 8 & 1987 c 343 s 6. 34 NEW SECTION.Sec. Part headings used in this act are notany part of the law.NEW SECTION.Sec. If specific funding for the purposes ofthis act, referencing this act by bill or chapter number, is notprovided by June 30, 2003, in the omnibus appropriations act, this actis null and void. Correct the title.Chapter 77.55 RCW is amended, reorganized, andrecodified. Several sections relating to fish passage and screeningare moved to a new chapter in Title 77 RCW. An intent section and adefinition section are created. RCW 77.55.100 and 77.55.110 whichcurrently authorize the Department of Fish and Wildlife (DFW) to issuehydraulic permits, are repealed and rewritten into one section. Policy changes contained in the proposed striking amendment thatare not part of ESSB 5375 include: (1) Appeals of all hydraulic permit decisions, not just projectsgranted for diversion of water for agricultural irrigation, stockwatering, streambank stabilization, or offsite mitigation are thejurisdiction of the Hydraulic Appeals Board; (2) The Department of Fish and Wildlife (DFW) has the burden ofproof to show that the denial or conditioning of a permit is solely toprotect fish life for all applicants, not just those applying for apermit under RCW 77.55.110; (3) The definition of streambank stabilization is restricted tospecific projects; (4) Provisions allowing the DFW to modify a permit due to changedconditions applies to all hydraulic permits, not just those issuedunder RCW 77.55.110; (5) Provisions allowing a permittee to request modification of apermit due to changed conditions applies to all hydraulic permits, notjust to those issued under RCW 77.55.110; and (6) The 45day requirement for DFW to grant or deny approval of apermit is suspended if an application is not complete. Policy changes in ESSB 5375 that are not contained in the proposedstriking amendment include: (1) General permits developed for routine repair and maintenance ofexisting overwater structures is removed; (2) General permits for routine repair and maintenance of bridgesis restricted to activities below the ordinary high water line; (3) The provision allowing local governments to apply forcertification for critical areas or shoreline regulations as equivalenthydraulic permit requirements is removed; 35 (4) The requirement that the DFW must develop procedures to ensureconsistency of hydraulic permit conditions is removed; (5) The 45day period for permit issuance is not suspended when aproject applicant requests review under the expedited disputeresolution process; (6) Language restricting other work to "within the bed of any statewaters" for the purpose of obtaining a hydraulic project permit isremoved; and (7) Expedited dispute resolution committee decisions are notbinding on the DFW.--- END --- 36