BILL REQ. #:  H-0464.1 

Read first time 01/20/2005.   Referred to Committee on Natural Resources, Ecology & Parks.

     AN ACT Relating to a pilot program for flood control; amending RCW 77.55.100 and 77.55.110; creating new sections; and providing expiration dates.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that floods pose threats to public health and to public and private property including:
     (a) Loss or endangerment of human life;
     (b) Loss of public and private property;
     (c) Damage to homes, farms, and other structures;
     (d) Damage to fisheries and fish habitat;
     (e) Damage to public roads, bridges, and other infrastructure;
     (f) Destruction or degradation of environmentally sensitive areas;
     (g) Erosion of land and stream banks and beds; and
     (h) Reduction of water quality.
     (2) The legislature further finds that:
     (a) The prevention of flood damage to public and private property is a matter of public concern;
     (b) Projects that prevent and minimize flood damage may be planned and approved in advance of the time that a flood occurs. However, there are also emergencies requiring immediate project approval; and
     (c) Many projects designed to protect public and private property from flood damage are not approved due to conflicts with existing permitting and regulatory requirements.
     (3) The legislature therefore finds that a pilot program must be developed for projects in select water resource inventory areas to demonstrate and evaluate methods for authorizing flood control projects that protect public and private property, protect or enhance habitat, and protect fish life.

NEW SECTION.  Sec. 2   (1) A flood control and stream bank restoration pilot program is authorized to demonstrate flood control projects that protect property, protect or enhance habitat, and protect fish life.
     (a) County legislative authorities within water resource inventory areas three, four, five, and seven shall administer the pilot program. The department of fish and wildlife shall delegate authority to approve hydraulic project approvals to the county legislative authority for projects selected for the pilot program. In determining permit approval, the county legislative authority shall give equal consideration to the protection of human life, public land or private property, and fish life.
     (b) The pilot program must test permit approval processes for flood control and stream bank restoration projects and the effect of approving projects designed to protect property, protect or enhance habitat, and protect fish life. The objectives of the pilot program include identifying:
     (i) Methods for expediting and coordinating permit decision-making processes for flood control and stream bank restoration projects that involve multiple jurisdictions and state agencies;
     (ii) Impediments during the permitting process for project approval including conflicts with existing policies, rules, and laws; and
     (iii) Differences between projects designed to protect property, protect or enhance habitat, and protect fish life. The analysis shall give equal consideration to the protection of human life, public land or private property, and fish life.
     (2) The pilot program must consist of up to ten projects in each participating county within watershed resource inventory areas three, four, five, and seven.
     (3)(a) The departments of ecology, fish and wildlife, and natural resources shall participate in the pilot program. The department of ecology shall act as the lead agency among the state agencies and shall coordinate among the state agencies as necessary. The department of fish and wildlife shall provide technical assistance to project proponents to assist in developing projects that both protect property and protect or enhance fish life. The department of natural resources shall provide technical assistance with projects involving aquatic use permits and removal of sand or gravel from aquatic lands.
     (b) The department of ecology shall notify each of the eligible counties of the pilot program, describe the nature of the pilot program, and invite county participation. When a county receives an application for a project that will require permits or authorizations from multiple jurisdictions, and in the county's judgment the proposed project offers an appropriate opportunity to test the pilot program's intent under subsection (1) of this section, the county, with the approval of the project applicant, may include the project as part of the pilot program.
     (c) In selecting projects for the pilot program, the county shall provide an opportunity to test and evaluate a variety of projects, including but not limited to dredging, stream bank stabilization, and dike construction or repair.
     (d) When a project has been selected for inclusion in the pilot program, the county shall schedule an initial coordination meeting and contact all appropriate agencies and the project applicant. Other local jurisdictions, including but not limited to cities, diking districts, and flood management districts, shall be invited to participate when a project is selected for inclusion in the pilot program and those jurisdictions have a role in the permitting process.
     The purpose of the coordination meeting is to:
     (i) Identify all necessary permit requirements;
     (ii) Determine the sequence of permitting decisions and opportunities where those decisions can be made concurrently;
     (iii) Determine a timeline for the decisions and how those decisions can be expedited; and
     (iv) Work with the applicant to make sure that he or she understands how the process will work, what the applicant is responsible for, and when those responsibilities must be met in order to adhere to the overall permitting timeline.
     (4) The department of ecology, in cooperation with the participating counties, other participating local jurisdictions, and state agencies, shall submit a final report on the pilot program to the appropriate committees of the legislature by December 1, 2007. The report shall include an assessment of the degree to which the pilot program achieved the objectives identified in subsection (1) of this section.

Sec. 3   RCW 77.55.100 and 2004 c 32 s 2 are each amended to read as follows:
     (1) Except as provided in section 2 of this act, in the event that any person or government agency desires to construct any form of hydraulic project or perform other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state, such person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure the approval of the department as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld or unreasonably conditioned.
     (2)(a) The department shall grant or deny approval of a standard permit within forty-five calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section. The period of forty-five calendar days may be extended, if the permit is part of a multiagency permit streamlining effort and all participating permitting agencies and the permit applicant agree to an extended timeline longer than forty-five calendar days. The permit must contain provisions allowing for minor modifications to the plans and specifications without requiring reissuance of the permit.
     (b) The applicant may document receipt of application by filing in person or by registered mail. A complete application for approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within the mean higher high water line in salt water or within the ordinary high water line in fresh water, and complete plans and specifications for the proper protection of fish life.
     (c) The forty-five day requirement shall be suspended if:
     (i) After ten working days of receipt of the application, the applicant remains unavailable or unable to arrange for a timely field evaluation of the proposed project;
     (ii) The site is physically inaccessible for inspection; or
     (iii) The applicant requests delay. Immediately upon determination that the forty-five day period is suspended, the department shall notify the applicant in writing of the reasons for the delay.
     (d) For purposes of this section, "standard permit" means a written permit issued by the department when the conditions under subsections (3) and (5)(b) of this section are not met.
     (3)(a) The department may issue an expedited written permit in those instances where normal permit processing would result in significant hardship for the applicant or unacceptable damage to the environment. In cases of imminent danger, the department shall issue an expedited written permit, upon request, for work to repair existing structures, move obstructions, restore banks, protect property, or protect fish resources. Expedited permit requests require a complete written application as provided in subsection (2)(b) of this section and shall be issued within fifteen calendar days of the receipt of a complete written application. Approval of an expedited permit is valid for up to sixty days from the date of issuance.
     (b) For the purposes of this subsection, "imminent danger" means a threat by weather, water flow, or other natural conditions that is likely to occur within sixty days of a request for a permit application.
     (c) The department may not require the provisions of the state environmental policy act, chapter 43.21C RCW, to be met as a condition of issuing a permit under this subsection.
     (d) The department or the county legislative authority may determine if an imminent danger exists. The county legislative authority shall notify the department, in writing, if it determines that an imminent danger exists.
     (4) Approval of a standard permit is valid for a period of up to five years from date of issuance. The permittee must demonstrate substantial progress on construction of that portion of the project relating to the approval within two years of the date of issuance. If the department denies approval, the department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. Chapter 34.05 RCW applies to any denial of project approval, conditional approval, or requirements for project modification upon which approval may be contingent.
     (5)(a) In case of an emergency arising from weather or stream flow conditions or other natural conditions, the department, through its authorized representatives, shall issue immediately, upon request, oral approval for removing any obstructions, repairing existing structures, restoring stream banks, or to protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written approval prior to commencing work. Conditions of an oral approval to protect fish life shall be established by the department and reduced to writing within thirty days and complied with as provided for in this section. Oral approval shall be granted immediately, upon request, for a stream crossing during an emergency situation.
     (b) For purposes of this section and RCW 77.55.110, "emergency" means an immediate threat to life, the public, property, or of environmental degradation.
     (c) The department or the county legislative authority may declare and continue an emergency when one or more of the criteria under (b) of this subsection are met. The county legislative authority shall immediately notify the department if it declares an emergency under this subsection.
     (6) The department shall, at the request of a county, develop five-year maintenance approval agreements, consistent with comprehensive flood control management plans adopted under the authority of RCW 86.12.200, or other watershed plan approved by a county legislative authority, to allow for work on public and private property for bank stabilization, bridge repair, removal of sand bars and debris, channel maintenance, and other flood damage repair and reduction activity under agreed-upon conditions and times without obtaining permits for specific projects.
     (7) This section shall not apply to the construction of any form of hydraulic project or other work which diverts water for agricultural irrigation or stock watering purposes authorized under or recognized as being valid by the state's water codes, or when such hydraulic project or other work is associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020. These irrigation or stock watering diversion and streambank stabilization projects shall be governed by RCW 77.55.110.
     A landscape management plan approved by the department and the department of natural resources under RCW 76.09.350(2), shall serve as a hydraulic project approval for the life of the plan if fish are selected as one of the public resources for coverage under such a plan.
     (8) For the purposes of this section and RCW 77.55.110, "bed" means the land below the ordinary high water lines of state waters. This definition does not include irrigation ditches, canals, storm water run-off devices, or other artificial watercourses except where they exist in a natural watercourse that has been altered by man.
     (9) The phrase "to construct any form of hydraulic project or perform other work" does not include the act of driving across an established ford. Driving across streams or on wetted stream beds at areas other than established fords requires approval. Work within the ordinary high water line of state waters to construct or repair a ford or crossing requires approval.
     (10) The department shall not require a fishway on a tide gate, flood gate, or other associated man-made agricultural drainage facilities as a condition of a hydraulic project approval if such fishway was not originally installed as part of an agricultural drainage system existing on or before May 20, 2003.
     (11) Any condition requiring a self-regulating tide gate to achieve fish passage in an existing hydraulic project approval under this section may not be enforced.
     (12) This section expires June 30, 2008.

Sec. 4   RCW 77.55.110 and 2002 c 368 s 3 are each amended to read as follows:
     Except as provided in section 2 of this act, in the event that any person or government agency desires to construct any form of hydraulic project or other work that diverts water for agricultural irrigation or stock watering purposes, or when such hydraulic project or other work is associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020, and when such diversion or streambank stabilization will use, divert, obstruct, or change the natural flow or bed of any river or stream or will utilize any waters of the state or materials from the stream beds, the person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure a written approval from the department as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld or unreasonably conditioned. The department shall grant or deny the approval within forty-five calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section. The permit must contain provisions allowing for minor modifications to the plans and specifications without requiring reissuance of the permit. The applicant may document receipt of application by filing in person or by registered mail. A complete application for an approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within ordinary high water line, and complete plans and specifications for the proper protection of fish life. The forty-five day requirement shall be suspended if (1) after ten working days of receipt of the application, the applicant remains unavailable or unable to arrange for a timely field evaluation of the proposed project; (2) the site is physically inaccessible for inspection; or (3) the applicant requests delay.
     Immediately upon determination that the forty-five day period is suspended, the department shall notify the applicant in writing of the reasons for the delay.
     An approval shall remain in effect without need for periodic renewal for projects that divert water for agricultural irrigation or stock watering purposes and that involve seasonal construction or other work. Approval for streambank stabilization projects shall remain in effect without need for periodic renewal if the problem causing the need for the streambank stabilization occurs on an annual or more frequent basis. The permittee must notify the appropriate agency before commencing the construction or other work within the area covered by the approval.
     The permittee must demonstrate substantial progress on construction of that portion of the project relating to the approval within two years of the date of issuance. If the department denies approval, the department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. Issuance, denial, conditioning, or modification shall be appealable to the hydraulic appeals board established in RCW 43.21B.005 within thirty days of the notice of decision. The burden shall be upon the department to show that the denial or conditioning of an approval is solely aimed at the protection of fish life.
     The department may, after consultation with the permittee, modify an approval due to changed conditions. The modifications shall become effective unless appealed to the hydraulic appeals board within thirty days from the notice of the proposed modification. The burden is on the department to show that changed conditions warrant the modification in order to protect fish life.
     A permittee may request modification of an approval due to changed conditions. The request shall be processed within forty-five calendar days of receipt of the written request. A decision by the department may be appealed to the hydraulic appeals board within thirty days of the notice of the decision. The burden is on the permittee to show that changed conditions warrant the requested modification and that such modification will not impair fish life.
     In case of an emergency arising from weather or stream flow conditions or other natural conditions, the department, through its authorized representatives, shall issue immediately upon request oral approval for removing any obstructions, repairing existing structures, restoring stream banks, or to protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written approval prior to commencing work. Conditions of an oral approval shall be reduced to writing within thirty days and complied with as provided for in this section.
     For purposes of this chapter, "streambank stabilization" shall include but not be limited to log and debris removal, bank protection (including riprap, jetties, and groins), gravel removal and erosion control.
     This section expires June 30, 2008.