BILL REQ. #:  Z-0629.2 

Read first time 02/06/09.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to creating the office of archaeology and historic preservation; amending RCW 43.334.010, 43.334.020, 43.334.060, 43.334.070, 43.334.075, 43.334.077, 43.334.080, 27.34.020, 27.34.220, 27.34.230, 27.34.240, 27.34.270, 27.34.280, 27.34.330, 27.34.415, 27.44.055, 41.06.095, 43.17.010, 43.17.020, 68.50.645, 68.60.030, 68.60.055, 90.48.366, 90.48.368, 27.53.020, 27.53.030, 27.53.060, 27.53.080, 27.53.090, 27.53.095, 27.53.100, 27.53.110, 27.53.120, 27.53.130, 27.53.140, and 79A.05.075; reenacting and amending RCW 27.53.070; creating a new section; and repealing RCW 43.334.030, 43.334.040, 43.334.050, and 43.334.900.

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

Sec. 1   RCW 43.334.010 and 2005 c 333 s 1 are each amended to read as follows:
     (1) There is created ((a department of state government)) an office to be known as the ((department)) office of archaeology and historic preservation within the state parks and recreation commission. The ((department)) office is vested with all powers and duties transferred to it under this chapter and such other powers and duties as may be authorized by law.
     (2) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (a) (("Department")) "Commission" means the state parks and recreation commission.
     (b) "Director" means the director of the state parks and recreation commission.
     (c) "Office" means the ((department)) office of archaeology and historic preservation.
     (((b) "Director")) (d) "Preservation officer" means the ((director of the department of archaeology and historic preservation)) state historic preservation officer as provided for in RCW 43.334.020.

Sec. 2   RCW 43.334.020 and 2005 c 333 s 2 are each amended to read as follows:
     ((The executive head and appointing authority of the department is the director.)) The ((director)) governor shall ((serve as)) appoint the state historic preservation officer((, and)) subject to the approval of the commission. The preservation officer shall report directly to the commission. The preservation officer shall have a background in program administration, an active involvement in historic preservation, and a knowledge of the national, state, and local preservation programs as they affect the state of Washington. ((The director shall be appointed by the governor, with the consent of the senate, and serves at the pleasure of the governor. The director shall be paid a salary to be fixed by the governor in accordance with RCW 43.03.040. If a vacancy occurs in the position while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate.))

Sec. 3   RCW 43.334.060 and 2005 c 333 s 6 are each amended to read as follows:
     (1) The preservation officer shall supervise the operations of the office of archaeology and historic preservation.
     (2) Any power or duty vested in or transferred to the ((director)) preservation officer by law or executive order may be delegated by the ((director to the deputy director or)) preservation officer to any other assistant or subordinate; but the ((director)) preservation officer is responsible for the official acts of the officers and employees of the ((department)) office.

Sec. 4   RCW 43.334.070 and 2005 c 333 s 7 are each amended to read as follows:
     The ((director)) preservation officer may appoint advisory committees or councils as required by any federal legislation as a condition to the receipt of federal funds by the ((department)) office. The ((director)) preservation officer may also appoint statewide committees or councils on those subject matters as are or come within the ((department's)) office's responsibilities. The statewide committees and councils shall have representation from both major political parties and shall have substantial consumer representation. The committees or councils shall be constituted as required by federal law or as the ((director)) preservation officer may determine. The members of the committees or councils shall hold office as follows: One-third to serve one year; one-third to serve two years; and one-third to serve three years. Upon expiration of the original terms, subsequent appointments shall be for three years except in the case of a vacancy, in which event appointment shall be only for the remainder of the unexpired term for which the vacancy occurs. No member may serve more than two consecutive terms.
     Members of such state advisory committees or councils may be paid their travel expenses in accordance with RCW 43.03.050 and 43.03.060.

Sec. 5   RCW 43.334.075 and 2008 c 275 s 4 are each amended to read as follows:
     (1) The ((director)) preservation officer shall appoint a state physical anthropologist. At a minimum, the state physical anthropologist must have a doctorate in either archaeology or anthropology and have experience in forensic osteology or other relevant aspects of physical anthropology and must have at least one year of experience in laboratory reconstruction and analysis. A medical degree with archaeological experience in addition to the experience required may substitute for a doctorate in archaeology or anthropology.
     (2) The state physical anthropologist has the primary responsibility of investigating, preserving, and, when necessary, removing and reinterring discoveries of nonforensic skeletal human remains. The state physical anthropologist is available to any local governments or any federally recognized tribal government within the boundaries of Washington to assist in determining whether discovered skeletal human remains are forensic or nonforensic.
     (3) The ((director)) preservation officer shall hire staff as necessary to support the state physical anthropologist to meet the objectives of this section.
     (4) For the purposes of this section, "forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.

Sec. 6   RCW 43.334.077 and 2008 c 275 s 7 are each amended to read as follows:
     The skeletal human remains assistance account is created in the custody of the state treasurer. All appropriations provided by the legislature for this purpose as well as any reimbursement for services provided pursuant to chapter 275, Laws of 2008 must be deposited in the account. Expenditures from the account may be used only for archaeological determinations and excavations of inadvertently discovered skeletal human remains, and removal and reinterment of such remains when necessary. Only the ((director or the director's)) preservation officer or preservation officer's designee may authorize expenditures from the account. The account is subject to the allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

Sec. 7   RCW 43.334.080 and 2005 c 333 s 8 are each amended to read as follows:
     In furtherance of the policy of the state to cooperate with the federal government in all of the programs under the jurisdiction of the ((department)) office, rules as may become necessary to entitle the state to participate in federal funds may be adopted, unless expressly prohibited by law. Any internal reorganization carried out under the terms of this chapter shall meet federal requirements that are a necessary condition to state receipt of federal funds. Any section or provision of law dealing with the ((department)) office that may be susceptible to more than one construction shall be interpreted in favor of the construction most likely to comply with federal laws entitling this state to receive federal funds for the various programs of the ((department)) office. If any law dealing with the ((department)) office is ruled to be in conflict with federal requirements that are a prescribed condition of the allocation of federal funds to the state, or to any departments or agencies thereof, the conflicting part is declared to be inoperative solely to the extent of the conflict.

Sec. 8   RCW 27.34.020 and 2007 c 333 s 5 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:
     (1) "Advisory council" means the advisory council on historic preservation.
     (2) (("Department")) "Office" means the ((department)) office of archaeology and historic preservation.
     (3) "Director" means the director of the ((department of archaeology and historic preservation)) state parks and recreation commission.
     (4) "Federal act" means the national historic preservation act of 1966 (Public Law 89-655; 80 Stat. 915).
     (5) "Heritage barn" means any large agricultural outbuilding used to house animals, crops, or farm equipment, that is over fifty years old and has been determined by the ((department)) office to: (a) Be eligible for listing on the Washington heritage register or the national register of historic places; or (b) have been listed on a local historic register and approved by the advisory council. In addition to barns, "heritage barn" includes agricultural resources such as milk houses, sheds, silos, or other outbuildings, that are historically associated with the working life of the farm or ranch, if these outbuildings are on the same property as a heritage barn.
     (6) (("Heritage council" means the Washington state heritage council.
     (7))) "Historic preservation" includes the protection, rehabilitation, restoration, identification, scientific excavation, and reconstruction of districts, sites, buildings, structures, and objects significant in American and Washington state history, architecture, archaeology, or culture.
     (((8))) (7) "Preservation officer" means the state historic preservation officer as provided for in RCW 43.334.020.
     (((9))) (8) "Project" means programs leading to the preservation for public benefit of historical properties, whether by state and local governments or other public bodies, or private organizations or individuals, including the acquisition of title or interests in, and the development of, any district, site, building, structure, or object that is significant in American and Washington state history, architecture, archaeology, or culture, and property used in connection therewith, or for its development.
     (((10))) (9) "State historical agencies" means the state historical societies and the ((department)) office.
     (((11))) (10) "State historical societies" means the Washington state historical society and the eastern Washington state historical society.
     (((12))) (11) "Cultural resource management plan" means a comprehensive plan which identifies and organizes information on the state of Washington's historic, archaeological, and architectural resources into a set of management criteria, and which is to be used for producing reliable decisions, recommendations, and advice relative to the identification, evaluation, and protection of these resources.

Sec. 9   RCW 27.34.220 and 1997 c 145 s 1 are each amended to read as follows:
     The ((director or the director's)) preservation officer or the preservation officer's designee is authorized:
     (1) To promulgate and maintain the Washington heritage register of districts, sites, buildings, structures, and objects significant in American or Washington state history, architecture, archaeology, and culture, and to prepare comprehensive statewide historic surveys and plans and research and evaluation of surveyed resources for the preparation of nominations to the Washington heritage register and the national register of historic places, in accordance with criteria approved by the advisory council established under RCW 27.34.250. Nominations to the national register of historic places shall comply with any standards and regulations promulgated by the United States secretary of the interior for the preservation, acquisition, and development of such properties. Nominations to the Washington heritage register shall comply with rules adopted under this chapter.
     (2) To establish a program of matching grants-in-aid to public agencies, public or private organizations, or individuals for projects having as their purpose the preservation for public benefit of properties that are significant in American or Washington state history, architecture, archaeology, and culture.
     (3) To promote historic preservation efforts throughout the state, including private efforts and those of city, county, and state agencies.
     (4) To enhance the effectiveness of the state preservation program through the initiation of legislation, the use of varied funding sources, the creation of special purpose programs, and contact with state, county, and city officials, civic groups, and professionals.
     (5) To spend funds, subject to legislative appropriation and the availability of funds, where necessary to assist the Indian tribes of Washington state in removing prehistoric human remains for scientific examination and reburial, if the human remains have been unearthed inadvertently or through vandalism and if no other public agency is legally responsible for their preservation.
     (6) To consult with the governor and the legislature on issues relating to the conservation of the man-made environment and their impact on the well-being of the state and its citizens.
     (7) To charge fees for professional and clerical services provided by the office.
     (8) To adopt such rules, in accordance with chapter 34.05 RCW, as are necessary to carry out RCW 27.34.200 through 27.34.280.

Sec. 10   RCW 27.34.230 and 2005 c 333 s 15 are each amended to read as follows:
     The director of the state parks and recreation commission or the director's designee shall:
     (1) Receive, administer, and disburse such gifts, grants, and endowments from private sources as may be made in trust or otherwise for the purposes of RCW 27.34.200 ((through)) and 27.34.220 or the federal act; and
     (2) Develop and implement a cultural resource management plan.

Sec. 11   RCW 27.34.240 and 1986 c 266 s 13 are each amended to read as follows:
     The amounts made available for grants to the public agencies, public or private organizations, or individuals for projects for each fiscal year shall be apportioned among program applicants by the director or the director's designee, with the advice of the preservation officer, in accordance with needs as contained in statewide archaeology and historic preservation plans developed by the ((department)) office.

Sec. 12   RCW 27.34.270 and 1997 c 145 s 2 are each amended to read as follows:
     The advisory council shall:
     (1) Advise the governor and the ((department)) office on matters relating to historic preservation; recommend measures to coordinate activities of state and local agencies, private institutions, and individuals relating to historic preservation; and advise on the dissemination of information pertaining to such activities; and
     (2) Review and recommend nominations for the national register of historic places to the preservation officer ((and the director)).

Sec. 13   RCW 27.34.280 and 1986 c 266 s 15 are each amended to read as follows:
     The ((department)) office shall provide administrative and financial services to the advisory council on historic preservation ((and to the Washington state heritage council)).

Sec. 14   RCW 27.34.330 and 2006 c 371 s 232 are each amended to read as follows:
     The Washington state historical society shall establish a competitive process to solicit proposals for and prioritize heritage capital projects for potential funding in the state capital budget. The society shall adopt rules governing project eligibility and evaluation criteria. Application for funding of specific projects may be made to the society by local governments, public development authorities, nonprofit corporations, tribal governments, and other entities, as determined by the society. The society, with the advice of leaders in the heritage field, including but not limited to representatives from the office of the secretary of state, the eastern Washington state historical society, and the ((department)) office of archaeology and historic preservation, shall establish and submit a prioritized list of heritage capital projects to the governor and the legislature in the society's biennial capital budget request. The list shall include a description of each project, the amount of recommended state funding, and documentation of nonstate funds to be used for the project. The total amount of recommended state funding for projects on a biennial project list shall not exceed ten million dollars. The prioritized list shall be developed through open and public meetings and the amount of state funding shall not exceed thirty-three percent of the total cost of the project. The nonstate portion of the total project cost may include cash, the value of real property when acquired solely for the purpose of the project, and in-kind contributions. The ((department)) office shall not sign contracts or otherwise financially obligate funds under this section until the legislature has approved a specific list of projects. In contracts for grants authorized under this section, the society shall include provisions requiring that capital improvements be held by the grantee for a specified period of time appropriate to the amount of the grant and that facilities be used for the express purpose of the grant. If the grantee is found to be out of compliance with provisions of the contract, the grantee shall repay to the state general fund the principal amount of the grant plus interest calculated at the rate of interest on state of Washington general obligation bonds issued most closely to the date of authorization of the grant.

Sec. 15   RCW 27.34.415 and 2008 c 275 s 6 are each amended to read as follows:
     The ((department)) office of archaeology and historic preservation shall develop and maintain a centralized database and geographic information systems spatial layer of all known cemeteries and known sites of burials of human remains in Washington state. The information in the database is subject to public disclosure, except as provided in RCW 42.56.300; exempt information is available by confidentiality agreement to federal, state, and local agencies for purposes of environmental review, and to tribes in order to participate in environmental review, protect their ancestors, and perpetuate their cultures.
     Information provided to state and local agencies under this section is subject to public disclosure, except as provided in RCW 42.56.300.

Sec. 16   RCW 27.44.055 and 2008 c 275 s 2 are each amended to read as follows:
     (1) Any person who discovers skeletal human remains must notify the coroner and local law enforcement in the most expeditious manner possible. Any person knowing of the existence of human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice thereof is guilty of a misdemeanor.
     (2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
     (a) Immediately cease any activity which may cause further disturbance;
     (b) Make a reasonable effort to protect the area from further disturbance;
     (c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
     (d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
     (i) The finding of the remains was based on inadvertent discovery;
     (ii) The requirements of the subsection are otherwise met; and
     (iii) The person is otherwise in compliance with applicable law.
     (3) The coroner must make a determination whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
     (a) Upon determination that the remains are nonforensic, the coroner must notify the ((department)) office of archaeology and historic preservation within two business days. The ((department)) office will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
     (b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the ((department)) office must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the ((department)) office. A notification to tribes of a finding of nonforensic skeletal human remains does not create a presumption that the remains are Indian.
     (c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of such nonforensic remains. If the remains are determined to be Indian, the ((department)) office must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff.
     (d) The affected tribes have five business days to respond via telephone or writing to the ((department)) office as to their interest in the remains.
     (4) For the purposes of this section:
     (a) "Affected tribes" are:
     (i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
     (ii) Those federally recognized tribes that submit to the ((department)) office maps that reflect the tribe's geographical area of cultural affiliation; and
     (iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
     (b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
     (c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
     (5) Nothing in this section constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe.

Sec. 17   RCW 41.06.095 and 2005 c 333 s 9 are each amended to read as follows:
     In addition to the exemptions under RCW 41.06.070, this chapter does not apply in the ((department)) office of archaeology and historic preservation to the ((director, the director's personal secretary, the deputy director, all division directors and assistant directors,)) preservation officer and one confidential secretary ((for each of these officers)).

Sec. 18   RCW 43.17.010 and 2007 c 341 s 46 are each amended to read as follows:
     There shall be departments of the state government which shall be known as (1) the department of social and health services, (2) the department of ecology, (3) the department of labor and industries, (4) the department of agriculture, (5) the department of fish and wildlife, (6) the department of transportation, (7) the department of licensing, (8) the department of general administration, (9) the department of community, trade, and economic development, (10) the department of veterans affairs, (11) the department of revenue, (12) the department of retirement systems, (13) the department of corrections, (14) the department of health, (15) the department of financial institutions, (16) ((the department of archaeology and historic preservation, (17))) the department of early learning, and (((18))) (17) the Puget Sound partnership, which shall be charged with the execution, enforcement, and administration of such laws, and invested with such powers and required to perform such duties, as the legislature may provide.

Sec. 19   RCW 43.17.020 and 2007 c 341 s 47 are each amended to read as follows:
     There shall be a chief executive officer of each department to be known as: (1) The secretary of social and health services, (2) the director of ecology, (3) the director of labor and industries, (4) the director of agriculture, (5) the director of fish and wildlife, (6) the secretary of transportation, (7) the director of licensing, (8) the director of general administration, (9) the director of community, trade, and economic development, (10) the director of veterans affairs, (11) the director of revenue, (12) the director of retirement systems, (13) the secretary of corrections, (14) the secretary of health, (15) the director of financial institutions, (16) ((the director of the department of archaeology and historic preservation, (17))) the director of early learning, and (((18))) (17) the executive director of the Puget Sound partnership.
     Such officers, except the director of fish and wildlife, shall be appointed by the governor, with the consent of the senate, and hold office at the pleasure of the governor. The director of fish and wildlife shall be appointed by the fish and wildlife commission as prescribed by RCW 77.04.055.

Sec. 20   RCW 68.50.645 and 2008 c 275 s 1 are each amended to read as follows:
     (1) It is the duty of every person who knows of the existence and location of skeletal human remains to notify the coroner and local law enforcement in the most expeditious manner possible, unless such person has good reason to believe that such notice has already been given. Any person knowing of the existence of skeletal human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice to the coroner and local law enforcement, is guilty of a misdemeanor.
     (2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
     (a) Immediately cease any activity which may cause further disturbance;
     (b) Make a reasonable effort to protect the area from further disturbance;
     (c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
     (d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
     (i) The finding of the remains was based on inadvertent discovery;
     (ii) The requirements of the subsection are otherwise met; and
     (iii) The person is otherwise in compliance with applicable law.
     (3) The coroner must make a determination of whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such human remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
     (a) Upon determination that the remains are nonforensic, the coroner must notify the ((department)) office of archaeology and historic preservation within two business days. The ((department)) office will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
     (b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the ((department)) office must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the ((department)) office. A notification to tribes of a finding of such nonforensic skeletal human remains does not create a presumption that the remains are Indian.
     (c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of nonforensic remains. If the remains are determined to be Indian, the ((department)) office must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff.
     (d) The affected tribes have five business days to respond via telephone or writing to the ((department)) office as to their interest in the remains.
     (4) For the purposes of this section:
     (a) "Affected tribes" are:
     (i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
     (ii) Those federally recognized tribes that submit to the ((department)) office maps that reflect the tribe's geographical area of cultural affiliation; and
     (iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
     (b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
     (c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
     (5) Nothing in this section constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe.

Sec. 21   RCW 68.60.030 and 2005 c 365 s 150 are each amended to read as follows:
     (1)(a) The ((archaeological and historical division of the department of community, trade, and economic development)) office of archaeology and historic preservation may grant by nontransferable certificate authority to maintain and protect an abandoned cemetery upon application made by a preservation organization which has been incorporated for the purpose of restoring, maintaining, and protecting an abandoned cemetery. Such authority shall be limited to the care, maintenance, restoration, protection, and historical preservation of the abandoned cemetery, and shall not include authority to make burials. In order to activate a historical cemetery for burials, an applicant must apply for a certificate of authority to operate a cemetery from the state cemetery board.
     (b) Those preservation and maintenance corporations that are granted authority to maintain and protect an abandoned cemetery shall be entitled to hold and possess burial records, maps, and other historical documents as may exist. Maintenance and preservation corporations that are granted authority to maintain and protect an abandoned cemetery shall not be liable to those claiming burial rights, ancestral ownership, or to any other person or organization alleging to have control by any form of conveyance not previously recorded at the county auditor's office within the county in which the abandoned cemetery exists. Such organizations shall not be liable for any reasonable alterations made during restoration work on memorials, roadways, walkways, features, plantings, or any other detail of the abandoned cemetery.
     (c) Should the maintenance and preservation corporation be dissolved, the ((archaeological and historical division of the department of community, trade, and economic development)) office of archaeology and historic preservation shall revoke the certificate of authority.
     (d) Maintenance and preservation corporations that are granted authority to maintain and protect an abandoned cemetery may establish care funds.
     (2) Except as provided in subsection (1) of this section, the ((department of community, trade, and economic development)) office of archaeology and historic preservation may, in its sole discretion, authorize any Washington nonprofit corporation that is not expressly incorporated for the purpose of restoring, maintaining, and protecting an abandoned cemetery, to restore, maintain, and protect one or more abandoned cemeteries. The authorization may include the right of access to any burial records, maps, and other historical documents, but shall not include the right to be the permanent custodian of original records, maps, or documents. This authorization shall be granted by a nontransferable certificate of authority. Any nonprofit corporation authorized and acting under this subsection is immune from liability to the same extent as if it were a preservation organization holding a certificate of authority under subsection (1) of this section.
     (3) The ((department of community, trade, and economic development)) office of archaeology and historic preservation shall establish standards and guidelines for granting certificates of authority under subsections (1) and (2) of this section to assure that any restoration, maintenance, and protection activities authorized under this subsection are conducted and supervised in an appropriate manner.

Sec. 22   RCW 68.60.055 and 2008 c 275 s 3 are each amended to read as follows:
     (1) Any person who discovers skeletal human remains shall notify the coroner and local law enforcement in the most expeditious manner possible. Any person knowing of the existence of skeletal human remains and not having good reason to believe that the coroner and local law enforcement has notice thereof and who fails to give notice thereof is guilty of a misdemeanor.
     (2) Any person engaged in ground disturbing activity and who encounters or discovers skeletal human remains in or on the ground shall:
     (a) Immediately cease any activity which may cause further disturbance;
     (b) Make a reasonable effort to protect the area from further disturbance;
     (c) Report the presence and location of the remains to the coroner and local law enforcement in the most expeditious manner possible; and
     (d) Be held harmless from criminal and civil liability arising under the provisions of this section provided the following criteria are met:
     (i) The finding of the remains was based on inadvertent discovery;
     (ii) The requirements of the subsection are otherwise met; and
     (iii) The person is otherwise in compliance with applicable law.
     (3) The coroner must make a determination whether the skeletal human remains are forensic or nonforensic within five business days of receiving notification of a finding of such remains provided that there is sufficient evidence to make such a determination within that time period. The coroner will retain jurisdiction over forensic remains.
     (a) Upon determination that the remains are nonforensic, the coroner must notify the ((department)) office of archaeology and historic preservation within two business days. The ((department)) office will have jurisdiction over such remains until provenance of the remains is established. A determination that remains are nonforensic does not create a presumption of removal or nonremoval.
     (b) Upon receiving notice from a coroner of a finding of nonforensic skeletal human remains, the ((department)) office must notify the appropriate local cemeteries, and all affected Indian tribes via certified mail to the head of the appropriate tribal government, and contact the appropriate tribal cultural resources staff within two business days of the finding. The determination of what are appropriate local cemeteries to be notified is at the discretion of the ((department)) office. A notification to tribes of a finding of such nonforensic skeletal human remains does not create a presumption that the remains are Indian.
     (c) The state physical anthropologist must make an initial determination of whether nonforensic skeletal human remains are Indian or non-Indian to the extent possible based on the remains within two business days of notification of a finding of such nonforensic remains. If the remains are determined to be Indian, the ((department)) office must notify all affected Indian tribes via certified mail to the head of the appropriate tribal government within two business days and contact the appropriate tribal cultural resources staff.
     (d) The affected tribes have five business days to respond via telephone or writing to the ((department)) office as to their interest in the remains.
     (4) For the purposes of this section:
     (a) "Affected tribes" are:
     (i) Those federally recognized tribes with usual and accustomed areas in the jurisdiction where the remains were found;
     (ii) Those federally recognized tribes that submit to the ((department)) office maps that reflect the tribe's geographical area of cultural affiliation; and
     (iii) Other tribes with historical and cultural affiliation in the jurisdiction where the remains were found.
     (b) "Forensic remains" are those that come under the jurisdiction of the coroner pursuant to RCW 68.50.010.
     (c) "Inadvertent discovery" has the same meaning as used in RCW 27.44.040.
     (5) Nothing in this section constitutes, advocates, or otherwise grants, confers, or implies federal or state recognition of those tribes that are not federally recognized pursuant to 25 C.F.R. part 83, procedures for establishing that an American Indian group exists as an Indian tribe.

Sec. 23   RCW 90.48.366 and 2007 c 347 s 1 are each amended to read as follows:
     The department, in consultation with the departments of fish and wildlife and natural resources, and the parks and recreation commission, shall adopt rules establishing a compensation schedule for the discharge of oil in violation of this chapter and chapter 90.56 RCW. The amount of compensation assessed under this schedule shall be no less than one dollar per gallon of oil spilled and no greater than one hundred dollars per gallon of oil spilled. The compensation schedule shall reflect adequate compensation for unquantifiable damages or for damages not quantifiable at reasonable cost for any adverse environmental, recreational, aesthetic, or other effects caused by the spill and shall take into account:
     (1) Characteristics of any oil spilled, such as toxicity, dispersibility, solubility, and persistence, that may affect the severity of the effects on the receiving environment, living organisms, and recreational and aesthetic resources;
     (2) The sensitivity of the affected area as determined by such factors as: (a) The location of the spill; (b) habitat and living resource sensitivity; (c) seasonal distribution or sensitivity of living resources; (d) areas of recreational use or aesthetic importance; (e) the proximity of the spill to important habitats for birds, aquatic mammals, fish, or to species listed as threatened or endangered under state or federal law; (f) significant archaeological resources as determined by the ((department)) office of archaeology and historic preservation; and (g) other areas of special ecological or recreational importance, as determined by the department; and
     (3) Actions taken by the party who spilled oil or any party liable for the spill that: (a) Demonstrate a recognition and affirmative acceptance of responsibility for the spill, such as the immediate removal of oil and the amount of oil removed from the environment; or (b) enhance or impede the detection of the spill, the determination of the quantity of oil spilled, or the extent of damage, including the unauthorized removal of evidence such as injured fish or wildlife.

Sec. 24   RCW 90.48.368 and 2007 c 347 s 2 are each amended to read as follows:
     (1) The department shall adopt rules establishing a formal process for preassessment screening of damages resulting from spills to the waters of the state causing the death of, or injury to, fish, animals, vegetation, or other resources of the state. The rules shall specify the conditions under which the department shall convene a preassessment screening committee. The preassessment screening process shall occur concurrently with reconnaissance activities. The committee shall use information obtained from reconnaissance activities as well as any other relevant resource and resource use information. For each incident, the committee shall determine whether a damage assessment investigation should be conducted, or, whether the compensation schedule authorized under RCW 90.48.366 and 90.48.367 should be used to assess damages. The committee may accept restoration or enhancement projects or studies proposed by the liable parties in lieu of some or all of: (a) The compensation schedule authorized under RCW 90.48.366 and 90.48.367; or (b) the claims from damage assessment studies authorized under RCW 90.48.142.
     (2) A preassessment screening committee may consist of representatives of the departments of ecology, ((archaeology and historic preservation,)) fish and wildlife, health, and natural resources, the office of archaeology and historic preservation and the parks and recreation commission, as well as other federal, state, and local agencies, and tribal and local governments whose presence would enhance the reconnaissance or damage assessment aspects of spill response. The department shall chair the committee and determine which representatives will be needed on a spill-by-spill basis.
     (3) The committee shall consider the following factors when determining whether a damage assessment study authorized under RCW 90.48.367 should be conducted: (a) Whether evidence from reconnaissance investigations suggests that injury has occurred or is likely to occur to publicly owned resources; (b) the potential loss in services provided by resources injured or likely to be injured and the expected value of the potential loss; (c) whether a restoration project to return lost services is technically feasible; (d) the accuracy of damage quantification methods that could be used and the anticipated cost-effectiveness of applying each method; (e) the extent to which likely injury to resources can be verified with available quantification methods; and (f) whether the injury, once quantified, can be translated into monetary values with sufficient precision or accuracy.
     (4) When a resource damage assessment is required for an oil spill in the waters of the state, as defined in RCW 90.56.010, the state trustee agency responsible for the resource and habitat damaged shall conduct the damage assessment and pursue all appropriate remedies with the responsible party.
     (5) Oil spill damage assessment studies authorized under RCW 90.48.367 may only be conducted if the committee, after considering the factors enumerated in subsection (3) of this section, determines that the damages to be investigated are quantifiable at a reasonable cost and that proposed assessment studies are clearly linked to quantification of the damages incurred.
     (6) As new information becomes available, the committee may reevaluate the scope of damage assessment using the factors listed in subsection (3) of this section and may reduce or expand the scope of damage assessment as appropriate.
     (7) The preassessment screening process shall provide for the ongoing involvement of persons who may be liable for damages resulting from an oil spill. The department may negotiate with a potentially liable party to perform restoration and enhancement projects or studies which may substitute for all or part of the compensation authorized under RCW 90.48.366 and 90.48.367 or the damage assessment studies authorized under RCW 90.48.367.
     (8) For the purposes of this section and RCW 90.48.367, the cost of a damage assessment shall be considered "reasonable" when the anticipated cost of the damage assessment is expected to be less than the anticipated damage that may have occurred or may occur.

Sec. 25   RCW 27.53.020 and 2005 c 333 s 19 are each amended to read as follows:
     The discovery, identification, excavation, and study of the state's archaeological resources, the providing of information on archaeological sites for their nomination to the state and national registers of historic places, the maintaining of a complete inventory of archaeological sites and collections, and the providing of information to state, federal, and private construction agencies regarding the possible impact of construction activities on the state's archaeological resources, are proper public functions; and the ((department)) office of archaeology and historic preservation, created under the authority of chapter 43.334 RCW, is hereby designated as an appropriate ((agency)) office to carry out these functions. The ((director)) preservation officer shall provide guidelines for the selection of depositories designated by the state for archaeological resources. The legislature directs that there shall be full cooperation amongst the ((department)) office and other agencies of the state.

Sec. 26   RCW 27.53.030 and 2008 c 275 s 5 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Archaeology" means systematic, scientific study of man's past through material remains.
     (2) "Archaeological object" means an object that comprises the physical evidence of an indigenous and subsequent culture including material remains of past human life including monuments, symbols, tools, facilities, and technological by-products.
     (3) "Archaeological site" means a geographic locality in Washington, including but not limited to, submerged and submersible lands and the bed of the sea within the state's jurisdiction, that contains archaeological objects.
     (4) (("Department")) "Office" means the ((department)) office of archaeology and historic preservation, created in chapter 43.334 RCW.
     (5) (("Director" means the director of the department of archaeology and historic preservation, created in chapter 43.334 RCW.
     (6))) "Historic" means peoples and cultures who are known through written documents in their own or other languages. As applied to underwater archaeological resources, the term historic shall include only those properties which are listed in or eligible for listing in the Washington State Register of Historic Places (RCW 27.34.220) or the National Register of Historic Places as defined in the National Historic Preservation Act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended.
     (((7))) (6) "Prehistoric" means peoples and cultures who are unknown through contemporaneous written documents in any language.
     (7) "Preservation officer" means the state historical preservation officer as provided for in RCW 43.334.020.
     (8) "Professional archaeologist" means a person with qualifications meeting the federal secretary of the interior's standards for a professional archaeologist. Archaeologists not meeting this standard may be conditionally employed by working under the supervision of a professional archaeologist for a period of four years provided the employee is pursuing qualifications necessary to meet the federal secretary of the interior's standards for a professional archaeologist. During this four-year period, the professional archaeologist is responsible for all findings. The four-year period is not subject to renewal.
     (9) "Amateur society" means any organization composed primarily of persons who are not professional archaeologists, whose primary interest is in the archaeological resources of the state, and which has been certified in writing by two professional archaeologists.
     (10) "Historic archaeological resources" means those properties which are listed in or eligible for listing in the Washington State Register of Historic Places (RCW 27.34.220) or the National Register of Historic Places as defined in the National Historic Preservation Act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended.
     (11) "Commission" means the state parks and recreation commission.

Sec. 27   RCW 27.53.060 and 2002 c 211 s 3 are each amended to read as follows:
     (1) On the private and public lands of this state it shall be unlawful for any person, firm, corporation, or any agency or institution of the state or a political subdivision thereof to knowingly remove, alter, dig into, or excavate by use of any mechanical, hydraulic, or other means, or to damage, deface, or destroy any historic or prehistoric archaeological resource or site, or remove any archaeological object from such site, except for Indian graves or cairns, or any glyptic or painted record of any tribe or peoples, or historic graves as defined in chapter 68.05 RCW, disturbances of which shall be a class C felony punishable under chapter 9A.20 RCW, without having obtained a written permit from the ((director)) preservation officer for such activities.
     (2) The ((director)) preservation officer must obtain the consent of the private or public property owner or agency responsible for the management thereof, prior to issuance of the permit. The property owner or agency responsible for the management of such land may condition its consent on the execution of a separate agreement, lease, or other real property conveyance with the applicant as may be necessary to carry out the legal rights or duties of the public property landowner or agency.
     (3) The ((director)) preservation officer, in consultation with the affected tribes, shall develop guidelines for the issuance and processing of permits.
     (4) Such written permit and any agreement or lease or other conveyance required by any public property owner or agency responsible for management of such land shall be physically present while any such activity is being conducted.
     (5) The provisions of this section shall not apply to the removal of artifacts found exposed on the surface of the ground which are not historic archaeological resources or sites.
     (6) When determining whether to grant or condition a permit, the ((director)) preservation officer may give great weight to the final record of previous civil or criminal penalties against either the applicant, the parties responsible for conducting the work, or the parties responsible for carrying out the terms and conditions of the permit, either under this chapter or under comparable federal laws. If the ((director)) preservation officer denies a permit, the applicant may request a hearing as provided for in chapter 34.05 RCW. When the state parks and recreation commission requests a hearing under this subsection, an administrative law judge assigned by the office of administrative hearings shall conduct the hearing. The decision of the administrative law judge is the final agency order.

Sec. 28   RCW 27.53.070 and 2005 c 333 s 21 and 2005 c 274 s 243 are each reenacted and amended to read as follows:
     It is the declared intention of the legislature that field investigations on privately owned lands should be discouraged except in accordance with both the provisions and spirit of this chapter and persons having knowledge of the location of archaeological sites or resources are encouraged to communicate such information to the ((department)) office. Such information shall not constitute a public record which requires disclosure pursuant to the exception authorized in chapter 42.56 RCW to avoid site depredation.

Sec. 29   RCW 27.53.080 and 2005 c 333 s 22 are each amended to read as follows:
     (1) Qualified or professional archaeologists, in performance of their duties, may enter upon public lands of the state of Washington and its political subdivisions after first notifying the entity responsible for managing those public lands, at such times and in such manner as not to interfere with the normal management thereof, for the purposes of doing archaeological resource location and evaluation studies, including site sampling activities. The results of such studies shall be provided to the state agency or political subdivision responsible for such lands and the ((department)) office and are confidential unless the ((director)) preservation officer, in writing, declares otherwise. Scientific excavations are to be carried out only after appropriate agreement has been made between a professional archaeologist or an institution of higher education and the agency or political subdivision responsible for such lands. A copy of such agreement shall be filed with the ((department)) office.
     (2) Amateur societies may engage in such activities by submitting and having approved by the responsible agency or political subdivision a written proposal detailing the scope and duration of the activity. Before approval, a proposal from an amateur society shall be submitted to the ((department)) office for review and recommendation. The approving agency or political subdivision shall impose conditions on the scope and duration of the proposed activity necessary to protect the archaeological resources and ensure compliance with applicable federal, state, and local laws. The findings and results of activities authorized under this section shall be made known to the approving agency or political subdivision approving the activities and to the ((department)) office.

Sec. 30   RCW 27.53.090 and 1986 c 266 s 20 are each amended to read as follows:
     Any person, firm, or corporation violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day of continued violation of any provision of this chapter shall constitute a distinct and separate offense. Offenses shall be reported to the appropriate law enforcement agency or to the ((director)) preservation officer.

Sec. 31   RCW 27.53.095 and 2005 c 333 s 23 are each amended to read as follows:
     (1) Persons found to have violated this chapter, either by a knowing and willful failure to obtain a permit where required under RCW 27.53.060 or by a knowing and willful failure to comply with the provisions of a permit issued by the ((director)) preservation officer where required under RCW 27.53.060, in addition to other remedies as provided for by law, may be subject to one or more of the following:
     (a) Reasonable investigative costs incurred by a mutually agreed upon independent professional archaeologist investigating the alleged violation;
     (b) Reasonable site restoration costs; and
     (c) Civil penalties, as determined by the ((director)) preservation officer, in an amount of not more than five thousand dollars per violation.
     (2) Any person incurring the penalty may file an application for an adjudicative proceeding and may pursue subsequent review as provided in chapter 34.05 RCW and applicable rules of the ((department)) commission. When the state parks and recreation commission requests an adjudicative proceeding under this subsection, an administrative law judge assigned by the office of administrative hearings shall conduct the hearing. The decision of the administrative law judge is the final agency order.
     (3) Any penalty imposed by final order following an adjudicative proceeding becomes due and payable upon service of the final order.
     (4) The attorney general may bring an action in the name of the ((department)) commission in the superior court of Thurston county or of any county in which the violator may do business to collect any penalty imposed under this chapter and to enforce subsection (5) of this section.
     (5) Any and all artifacts in possession of a violator shall become the property of the state until proper identification of artifact ownership may be determined by the ((director)) preservation officer.
     (6) Penalties overturned on appeal entitle the appealing party to fees and other expenses, including reasonable attorneys' fees, as provided in RCW 4.84.350.

Sec. 32   RCW 27.53.100 and 1988 c 124 s 5 are each amended to read as follows:
     Persons, firms, corporations, institutions, or agencies which discover a previously unreported historic archaeological resource on state-owned aquatic lands and report the site or location of such resource to the ((department)) office shall have a right of first refusal to future salvage permits granted for the recovery of that resource, subject to the provisions of RCW 27.53.110. Such right of first refusal shall exist for five years from the date of the report. Should another person, firm, corporation, institution, or agency apply for a permit to salvage that resource, the reporting entity shall have sixty days to submit its own permit application and exercise its first refusal right, or the right shall be extinguished.

Sec. 33   RCW 27.53.110 and 1988 c 124 s 6 are each amended to read as follows:
     The ((director)) preservation officer is hereby authorized to enter into contracts with ((other)) state agencies or institutions and with qualified private institutions, persons, firms, or corporations for the discovery and salvage of state-owned historic archaeological resources. Such contracts shall include but are not limited to the following terms and conditions:
     (1) Historic shipwrecks:
     (a) The contract shall provide for fair compensation to a salvor. "Fair compensation" means an amount not less than ninety percent of the appraised value of the objects recovered following successful completion of the contract.
     (b) The salvor may retain objects with a value of up to ninety percent of the appraised value of the total objects recovered, or cash, or a combination of objects and cash. In no event may the total of objects and cash exceed ninety percent of the total appraised value of the objects recovered. A salvor shall not be entitled to further compensation from any state sources.
     (c) The contract shall provide that the state will be given first choice of which objects it may wish to retain for display purposes for the people of the state from among all the objects recovered. The state may retain objects with a value of up to ten percent of the appraised value of the total objects recovered. If the state chooses not to retain recovered objects with a value of up to ten percent of the appraised value, the state shall be entitled to receive its share in cash or a combination of recovered objects and cash so long as the state's total share does not exceed ten percent of the appraised value of the objects recovered.
     (d) The contract shall provide that both the state and the salvor shall have the right to select a single appraiser or joint appraisers.
     (e) The contract shall also provide that title to the objects shall pass to the salvor when the permit is issued. However, should the salvor fail to fully perform under the terms of the contract, title to all objects recovered shall revert to the state.
     (2) Historic aircraft:
     (a) The contract shall provide that historic aircraft belonging to the state of Washington may only be recovered if the purpose of that salvage operation is to recover the aircraft for a museum, historical society, nonprofit organization, or governmental entity.
     (b) Title to the aircraft may only be passed by the state to one of the entities listed in (a) of this subsection.
     (c) Compensation to the salvor shall only be derived from the sale or exchange of the aircraft to one of the entities listed in (a) of this subsection or such other compensation as one of the entities listed in (a) of this subsection and the salvor may arrange. The salvor shall not have a claim to compensation from state funds.
     (3) Other historic archaeological resources: The ((director)) preservation officer, in his or her discretion, may negotiate the terms of such contracts.

Sec. 34   RCW 27.53.120 and 1988 c 124 s 7 are each amended to read as follows:
     The salvor shall agree to mitigate any archaeological damage which occurs during the salvage operation. The ((department)) office shall have access to all property recovered from historic archaeological sites for purposes of scholarly research and photographic documentation for a period to be agreed upon by the parties following completion of the salvage operation. The ((department)) office shall also have the right to publish scientific papers concerning the results of all research conducted as project mitigation.
     The ((director)) preservation officer has the right to refuse to issue a permit for salvaging an historic archaeological resource if that resource would be destroyed beyond mitigation by the proposed salvage operation. Any agency, institution, person, firm, or corporation which has been denied a permit because the resource would be destroyed beyond mitigation by their method of salvage shall have a right of first refusal for that permit at a future date should technology be found which would make salvage possible without destroying the resource. Such right of first refusal shall be in effect for sixty days after the ((director)) preservation officer has determined that salvage can be accomplished by a subsequent applicant without destroying the resource.
     No person, firm, or corporation may conduct such salvage or recovery operation herein described without first obtaining such contract.

Sec. 35   RCW 27.53.130 and 1995 c 399 s 17 are each amended to read as follows:
     The ((department)) office shall publish annually and update as necessary a list of those areas where permits are required to protect historic archaeological sites on aquatic lands.

Sec. 36   RCW 27.53.140 and 1995 c 399 s 18 are each amended to read as follows:
     The ((department)) state parks and recreation commission in consultation with the preservation officer shall have such rule-making authority as is necessary to carry out the provisions of this chapter.

Sec. 37   RCW 79A.05.075 and 1999 c 249 s 306 are each amended to read as follows:
     No provision of law relating to the commission shall prevent the commission from delegating to the director such powers and duties of the commission as they may deem proper, except that the commission may not delegate supervision of the state historic preservation officer.

NEW SECTION.  Sec. 38   (1) The department of archaeology and historic preservation is hereby abolished and its powers, duties, and functions are hereby transferred to the office of archaeology and historic preservation within the state parks and recreation commission.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of archaeology and historic preservation shall be delivered to the custody of the state parks and recreation commission. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the department of archaeology and historic preservation shall be made available to the state parks and recreation commission for use by the office of archaeology and historic preservation. All funds, credits, or other assets held by the department of archaeology and historic preservation shall be assigned to the state parks and recreation commission for use by the office of archaeology and historic preservation.
     (b) Any appropriations made to the department of archaeology and historic preservation shall, on the effective date of this section, be transferred and credited to the state parks and recreation commission.
     (c) If any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All employees of the department of archaeology and historic preservation are transferred to the jurisdiction of the state parks and recreation commission. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the state parks and recreation commission to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.
     (4) All rules and all pending business before the department of archaeology and historic preservation shall be continued and acted upon by the state parks and recreation commission. All existing contracts and obligations shall remain in full force and shall be performed by the state parks and recreation commission.
     (5) The transfer of the powers, duties, functions, and personnel of the department of archaeology and historic preservation shall not affect the validity of any act performed before the effective date of this section.
     (6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (7) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the public employment relations commission as provided by law.

NEW SECTION.  Sec. 39   The following acts or parts of acts are each repealed:
     (1) RCW 43.334.030 (Director powers and duties) and 2005 c 333 s 3;
     (2) RCW 43.334.040 (Departmental divisions) and 2005 c 333 s 4;
     (3) RCW 43.334.050 (Deputy director--Department personnel director-Assistant directors) and 2005 c 333 s 5; and
     (4) RCW 43.334.900 (Transfer of powers, duties, and functions) and 2005 c 333 s 12.