BILL REQ. #:  H-4172.1 

Read first time 01/21/10.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to providing the department of fish and wildlife authority to improve permitting of hydraulic projects; amending RCW 77.55.011, 77.55.021, 77.15.300, 77.55.291, 77.55.081, and 77.55.091; adding new sections to chapter 77.55 RCW; creating a new section; prescribing penalties; and providing an expiration date.

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

NEW SECTION.  Sec. 1   The legislature finds that the department of fish and wildlife issues thousands of hydraulic project approvals each year at a substantial commitment of government resources for individual permit review and writing. The legislature recognizes the importance of the individual approval processes to ensure that hydraulic project approval decisions provide for the proper protection of fish life. However, the legislature also recognizes that permitting of certain routine, low-risk activities can be streamlined by issuing pamphlet permits that describe specific rules that, if complied with, will ensure proper protection of fish life and lessen the regulatory burden on applicants. The legislature also finds that other permit streamlining measures, such as issuing multiple site permits or general permits authorizing work within a broad, defined geographic area for specific applicants will benefit both the applicant and the department of fish and wildlife, and provide for the protection of fish life. Furthermore, the legislature finds that the department of fish and wildlife should establish fees for the hydraulic project approval program to pay for a portion of the program's administrative, compliance monitoring, and enforcement costs.

NEW SECTION.  Sec. 2   A new section is added to chapter 77.55 RCW to read as follows:
     (1) As an alternative to requiring and issuing individual hydraulic project approvals under RCW 77.55.021, the department may adopt rules under which certain hydraulic projects may be conducted without an individual hydraulic project approval, provided the rules are followed. The rules must:
     (a) Ensure that this alternative hydraulic project approval is only available for repetitive, low-risk hydraulic projects for which potential impacts to fish life are well understood and proven mitigation measures are available that can be incorporated into the rule;
     (b) Describe the time, manner, locations, methods, or other conditions under which the described activity is approved;
     (c) Describe the activity that is exempt from individual hydraulic project approval, if conducted in compliance with the rules; and
     (d) Be published in pamphlets or online, which may provide other reasonably necessary information or educational materials designed to aid compliance with the approved time, manner, methods, or other requirements provided by rule.
     (2) Rules adopted under this section may require possession of the pamphlet at the hydraulic project activity site or while conducting the activity. The rules may also require possession of proof of payment of applicable fees authorized by this act and post-activity reporting of activities conducted under this section. The rules must be enforced under RCW 77.15.300.

Sec. 3   RCW 77.55.011 and 2009 c 549 s 1028 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Bed" means the land below the ordinary high water lines of state waters. This definition does not include irrigation ditches, canals, storm water runoff devices, or other artificial watercourses except where they exist in a natural watercourse that has been altered artificially.
     (2) "Board" means the hydraulic appeals board created in RCW 77.55.301.
     (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 and wildlife.
     (6) "Emergency" means an immediate threat to life, the public, property, or of environmental degradation.
     (7) "Hydraulic project" means the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.
     (8) "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.
     (9) "Marina" means a public or private facility providing boat moorage space, fuel, or commercial services. Commercial services include but are not limited to overnight or live-aboard boating accommodations.
     (10) "Marine terminal" means a public or private commercial wharf located in the navigable water of the state and used, or intended to be used, as a port or facility for the storing, handling, transferring, or transporting of goods to and from vessels.
     (11) "Ordinary high water line" means the mark on the shores of all water that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in ordinary years as to mark upon the soil or 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 mean higher high water and the ordinary high water line adjoining fresh water is the elevation of the mean annual flood.
     (12) "Permit" means a hydraulic project approval permit issued under 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 the following methods: Pans; nonmotorized sluice boxes; concentrators; and minirocker 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 prevent or limit erosion, slippage, and mass wasting. These projects include, but are not limited to, bank resloping, log and debris relocation or removal, planting of woody vegetation, bank protection using rock or woody material or placement of jetties or groins, gravel removal, or erosion control.
     (17) "Tide gate" means a one-way check valve that prevents the backflow of tidal water.
     (18) "Waters of the state" and "state waters" means all salt and fresh waters waterward of the ordinary high water line and within the territorial boundary of the state.
     (19) "Application submittal fee" means the fee that accompanies an application for hydraulic project approval submitted under RCW 77.55.021 for the initial application intake, entry into the department's database, determination of application completeness, and assessment of appropriate permit processing fees. For projects in the low category, this fee also serves as the permit processing fee.
     (20) "Emergency permit" means a verbal hydraulic project approval or the written follow-up to the verbal approval issued under RCW 77.55.021(15).
     (21) "Expedited permit" means a hydraulic project approval issued under RCW 77.55.021 (14) or (15).
     (22) "General permit" means a hydraulic project approval issued under RCW 77.55.021 for multiple routine hydraulic projects occurring over a wide geographic area but for which specific project sites have not been designated.
     (23) "Pamphlet permit" means a hydraulic project approval that contains the rules under which routine, low-risk hydraulic projects may be conducted. Pamphlet permits are issued in printed or online pamphlet format under RCW 77.55.081, 77.55.091, or section 2 of this act.
     (24) "Permit modification" means a hydraulic project approval issued under RCW 77.55.021 that extends, renews, or changes the conditions of a previously issued hydraulic project approval, provided the design, size, and scope of the previously approved project remain unchanged.
     (25) "Permit processing fee" means the fee for evaluating the impacts of, and resultant mitigation for proposed hydraulic projects, and for processing applications under RCW 77.55.021.
     (26) "Single-site permit" means a hydraulic project approval issued under RCW 77.55.021 for a single hydraulic project location.

Sec. 4   RCW 77.55.021 and 2008 c 272 s 1 are each amended to read as follows:
     (1) Except as provided in RCW 77.55.031, ((77.55.051, and)) 77.55.041, and 77.55.051, in the event that any person or government agency desires to undertake a hydraulic project, the person or government agency shall, before commencing work thereon, secure the approval of the department in the form of a permit as to the adequacy of the means proposed for the protection of fish life.
     (2) A complete written application for a permit ((may)) must be submitted ((in person or by registered mail)) to the department and must contain the following:
     (a) General plans for the overall project;
     (b) Complete plans and specifications of the proposed construction or work within the mean higher high water line in saltwater or within the ordinary high water line in freshwater;
     (c) Complete plans and specifications for the proper protection of fish life; ((and))
     (d) Notice of compliance with any applicable requirements of the state environmental policy act, unless otherwise provided for in this chapter; and
     (e) Payment of all applicable application submittal and permit processing fees charged by the department under section 6 of this act.
     (3) The department may accept complete, written applications as provided in this section for permits for hydraulic projects with multiple sites or within broad geographic areas.
     (4) With the exception of emergency oral permits as provided in subsection (11) of this section, applications for permits must be submitted to the department's headquarters office. Requests for emergency oral permits as provided in subsection (11) of this section may be made to the permitting biologist assigned to the location in which the emergency occurs, to the department's regional office in which the emergency occurs, or to the department's headquarters office.
     (5) Except as provided in subsections (11) and (13) of this section, the department may not proceed with permit review until the fees set out in section 6 of this act are paid.
     (6)(a) Protection of fish life is the only ground upon which approval of a permit may be denied or conditioned. Approval of a permit may not be unreasonably withheld or unreasonably conditioned. Except as provided in this subsection and subsections (((8), (10), and)) (12) (14), and (15) of this section, the department has forty-five calendar days upon receipt of a complete application to grant or deny approval of a permit. The forty-five day requirement is suspended if:
     (i) After ten working days of receipt of the complete 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;
     (iii) The applicant requests a delay; or
     (iv) The department is issuing a permit for a storm water discharge and is complying with the requirements of RCW 77.55.161(3)(b).
     (b) 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.
     (c) 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.
     (((4))) (7) If the department denies approval of a permit, the department shall provide the applicant a written statement of the specific reasons why and how the proposed project would adversely affect fish life. Only the issuance, denial, conditioning, or modification of a permit shall be appealable to the department or the board as specified in RCW 77.55.301 within thirty days of the notice of decision.
     (((5))) (8)(a) The permittee must demonstrate substantial progress on construction of that portion of the project relating to the permit within two years of the date of issuance.
     (b) Approval of a permit is valid for a period of up to five years from the date of issuance, except as provided in (c) of this subsection and in RCW 77.55.151.
     (c) A permit remains in effect without need for periodic renewal for hydraulic projects that divert water for agricultural irrigation or stock watering purposes and that involve seasonal construction or other work. A permit for streambank stabilization projects to protect farm and agricultural land as defined in RCW 84.34.020 remains 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 permit.
     (((6))) (9) The department may, after consultation with the permittee, modify a permit due to changed conditions. The modification becomes effective unless appealed to the department or the board as specified in RCW 77.55.301 within thirty days from the notice of the proposed modification. For hydraulic projects that divert water for agricultural irrigation or stock watering purposes, or when the hydraulic project or other work is associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020, the burden is on the department to show that changed conditions warrant the modification in order to protect fish life. The department may not charge fees under section 6 of this act if the modification is not requested by the permittee.
     (((7))) (10) A permittee may request modification of a permit due to changed conditions. The request must include payment of the permit modification fee charged by the department under section 6 of this act. The request must be processed ((within forty-five calendar days of receipt of the written request)) according to subsections (4), (5), and (6) of this section. A decision by the department may be appealed to the board within thirty days of the notice of the decision. For hydraulic projects that divert water for agricultural irrigation or stock watering purposes, or when the hydraulic project or other work is associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020, the burden is on the permittee to show that changed conditions warrant the requested modification and that such a modification will not impair fish life.
     (((8))) (11)(a) The department, the county legislative authority, or the governor may declare and continue an emergency. If the county legislative authority declares an emergency under this subsection, it shall immediately notify the department. A declared state of emergency by the governor under RCW 43.06.010 shall constitute a declaration under this subsection.
     (b) The department, through its authorized representatives, shall issue immediately, upon request, oral approval for a stream crossing, or work to remove any obstructions, repair existing structures, restore streambanks, protect fish life, or protect property threatened by the stream or a change in the stream flow without the necessity of obtaining a written permit prior to commencing work. Conditions of the emergency oral permit must be established by the department and reduced to writing within thirty days and complied with as provided for in this chapter.
     (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.
     (((9))) (d) The department shall charge permittees applicable application submittal and permit processing fees after an emergency permit is issued under this subsection. The department may not require payment of permit fees prior to the issuance of emergency permits.
     (12) All state and local agencies with authority under this chapter to issue permits or other authorizations in connection with emergency water withdrawals and facilities authorized under RCW 43.83B.410 shall expedite the processing of such permits or authorizations in keeping with the emergency nature of such requests and shall provide a decision to the applicant within fifteen calendar days of the date of application.
     (((10))) (13)(a) The department or the county legislative authority may determine an imminent danger exists. The county legislative authority shall notify the department, in writing, if it determines that an imminent danger exists. In cases of imminent danger, the department shall issue an expedited written permit, upon request, for work to remove any obstructions, repair existing structures, restore banks, protect fish resources, or protect property. Expedited permit requests require a complete written application as provided in subsection (2) of this section and must 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. The department may not require the provisions of the state environmental policy act, chapter 43.21C RCW, to be met, or the payment of a permit processing fee, as a condition of issuing a permit under this subsection.
     (((11))) (b) The department shall charge permittees applicable permit processing fees after an expedited permit is issued under this subsection.
     (14)(a) For any property, except for property located on a marine shoreline, that has experienced at least two consecutive years of flooding or erosion that has damaged or has threatened to damage a major structure, water supply system, septic system, or access to any road or highway, the county legislative authority may determine that a chronic danger exists. The county legislative authority shall notify the department, in writing, when it determines that a chronic danger exists. In cases of chronic danger, the department shall issue a permit, upon request, for work necessary to abate the chronic danger by removing any obstructions, repairing existing structures, restoring banks, restoring road or highway access, protecting fish resources, or protecting property. Permit requests must be made and processed in accordance with subsections (2) ((and)), (3), and (4) of this section.
     (b) Any projects proposed to address a chronic danger identified under (a) of this subsection that satisfies the project description identified in RCW 77.55.181(1)(a)(ii) are not subject to the provisions of the state environmental policy act, chapter 43.21C RCW. However, the project is subject to the review process established in RCW 77.55.181(3) as if it were a fish habitat improvement project.
     (((12))) (15)(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. Expedited permit requests require a complete written application as provided in subsection (2) of this section and must 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. The department may not require the provisions of the state environmental policy act, chapter 43.21C RCW, to be met, or the payment of a permit processing fee, as a condition of issuing a permit under this subsection.
     (b) The department shall charge permittees applicable permit processing fees after an expedited permit is issued under this subsection.

Sec. 5   RCW 77.15.300 and 2000 c 107 s 239 are each amended to read as follows:
     (1) A person is guilty of unlawfully undertaking hydraulic project activities if the person:
     (a)(i) Constructs any form of hydraulic project or performs other work on a hydraulic project; and((:
     (a))) (ii) Fails to have a hydraulic project approval required under chapter 77.55 RCW for such construction or work; or
     (b) Violates any requirements or conditions of the hydraulic project approval for such construction or work; or
     (c) Violates any rule adopted under RCW 77.55.021, 77.55.081, 77.55.091, or section 2 of this act that identifies the time, manner, locations, methods, or other conditions under which an activity is approved or not approved.
     (2) Unlawfully undertaking hydraulic project activities is a gross misdemeanor.

NEW SECTION.  Sec. 6   A new section is added to chapter 77.55 RCW to read as follows:
     (1) Between July 1, 2010, and June 30, 2012, the department will charge fees for permits issued under RCW 77.55.021 to recover a portion of the existing costs for processing and issuing decisions on permit applications, for the new costs of administering fee collections, and for costs related to compliance monitoring and enforcement of projects requiring a permit. The fees are based on the scale and complexity of the project and the relative effort required for department staff to review the application, conduct site visits and consult with applicants as necessary, and issue or deny the permit.
     (2) The department will charge the following fees:

NEW SECTION.  Sec. 7   A new section is added to chapter 77.55 RCW to read as follows:
     (1) The hydraulic project approval account is created in the state treasury. All receipts from application submittal fees and permit processing fees for hydraulic project approval applications in section 6 of this act must be deposited into the account.
     (2) Expenditures from the hydraulic project approval account may be used only to fund department activities relating to processing and issuing hydraulic project approval decisions, compliance monitoring, enforcement activities related to permits issued under RCW 77.55.021, conducting or participating in administrative or judicial appeals of hydraulic project approval decisions, and for the associated management and administrative costs incurred to implement and operate the program.
     (3) Except for unanticipated receipts under RCW 43.79.260 through 43.79.282, moneys in the hydraulic project approval account may be spent only after appropriation.

Sec. 8   RCW 77.55.291 and 2005 c 146 s 701 are each amended to read as follows:
     (1)(a) The department may levy civil penalties of up to one hundred dollars per day ((for violation of any provisions of RCW 77.55.021)) when a person:
     (i) Constructs any form of hydraulic project or performs other work on a hydraulic project and fails to have a hydraulic project approval required under this chapter for such construction or work;
     (ii) Violates any requirements or conditions of the hydraulic project approval for the construction or work;
     (iii) Fails to pay applicable application submittal or permit processing fees within thirty days of receipt of expedited permits or the written follow-up to emergency oral approvals under RCW 77.55.021; or
     (iv) Violates any rule adopted under RCW 77.55.021, 77.55.081, 77.55.091, or section 2 of this act that identifies the time, manner, locations, methods, or other conditions under which an activity is approved or not approved.
     (b) The penalty provided shall be imposed by notice in writing, either by certified mail or personal service to the person incurring the penalty, from the director or the director's designee describing the violation.
     (2) Any person incurring any penalty under this chapter may appeal the same under chapter 34.05 RCW to the director. Appeals shall be filed within thirty days of receipt of notice imposing any penalty.
     (3) The penalty imposed shall become due and payable thirty days after receipt of a notice imposing the penalty unless an appeal is filed. Whenever an appeal of any penalty incurred under this chapter is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part.
     (4) If the amount of any penalty is not paid within thirty days after it becomes due and payable, the attorney general, upon the request of the director, shall bring an action in the name of the state of Washington in the superior court of Thurston county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action. All penalties recovered under this section shall be paid into the state's general fund.

Sec. 9   RCW 77.55.081 and 2005 c 146 s 401 are each amended to read as follows:
     (1) By June 30, 1997, the department shall develop rules for projects conducted solely for the removal or control of various aquatic noxious weeds other than spartina and purple loosestrife and for activities or hydraulic projects for controlling purple loosestrife not covered by RCW 77.55.051(2). Following the adoption of the rules, the department shall produce and distribute a pamphlet describing the methods of removing or controlling the aquatic noxious weeds that are approved under the rules. The pamphlet serves as the permit for any project that is conducted solely for the removal or control of such aquatic noxious weeds and that is conducted as described in the pamphlet. No further permit is required for such a project.
     (2) From time to time as information becomes available, the department shall adopt similar rules for additional aquatic noxious weeds or additional activities for removing or controlling aquatic noxious weeds not governed by RCW 77.55.051 (1) and (2) and shall produce and distribute one or more pamphlets describing these methods of removal or control. Such a pamphlet serves as the permit for any project that is conducted solely for the removal or control of such aquatic noxious weeds and that is conducted as described in the pamphlet. No further permit is required for such a project.
     (3) Nothing in this section shall prohibit the department from requiring a permit for those parts of hydraulic projects that are not specifically for the control or removal of spartina, purple loosestrife, or other aquatic noxious weeds.
     (4) Permittees conducting activities under authority of pamphlets issued under this section must possess proof of payment of any applicable fees required by section 6 of this act.

Sec. 10   RCW 77.55.091 and 2005 c 146 s 402 are each amended to read as follows:
     (1) Small scale prospecting and mining shall not require a permit under this chapter if the prospecting is conducted in accordance with rules established by the department.
     (2) By December 31, 1998, the department shall adopt rules applicable to small scale prospecting and mining activities subject to this section. The department shall develop the rules in cooperation with the recreational mining community and other interested parties.
     (3) Within two months of adoption of the rules, the department shall distribute an updated gold and fish pamphlet that describes methods of mineral prospecting that are consistent with the department's rule. The pamphlet shall be written to clearly indicate the prospecting methods that require a permit under this chapter and the prospecting methods that require compliance with the pamphlet. To the extent possible, the department shall use the provisions of the gold and fish pamphlet to minimize the number of specific provisions of a written permit issued under this chapter.
     (4) Permittees conducting activities under authority of pamphlets issued under this section must possess proof of payment of any applicable fees required by section 6 of this act.

NEW SECTION.  Sec. 11   Section 6 of this act expires July 1, 2012.