BILL REQ. #: H-4442.1
| State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 01/22/10. Referred to Committee on Agriculture & Natural Resources.
AN ACT Relating to streamlining natural resources management; amending RCW 76.09.360, 76.09.040, 76.09.050, 76.09.100, 76.09.150, 76.09.260, 76.09.470, 90.64.010, 90.64.020, 90.64.170, 90.48.260, 77.55.021, 77.12.755, 77.12.870, 77.12.878, 77.15.390, 77.44.040, 77.55.121, 77.55.211, 77.55.131, 77.65.510, 77.70.210, 77.105.070, 79.13.620, 79.19.080, 79.70.030, 79.71.120, 79.105.500, 79.125.710, 79.125.730, 79.135.130, 79.135.140, 79.135.150, 79.135.320, 79.135.410, 79A.05.351, 79A.05.360, 79A.60.520, 79A.60.550, 79A.60.620, 79A.05.285, 79A.30.050, 79A.50.090, 79A.50.100, 79A.15.110, 78.44.280, 78.52.125, 78.56.040, 78.56.050, 78.56.060, 78.56.080, 78.56.090, 78.56.100, 78.56.110, 78.56.120, 78.56.160, 78.60.070, 78.60.080, 78.60.100, 90.03.247, 90.03.280, 90.03.290, 90.03.360, 90.03.590, 90.16.050, 90.16.090, 90.22.010, 90.22.020, 90.22.060, 90.24.010, 90.24.030, 90.24.060, 90.38.040, 90.48.170, 90.48.366, 90.48.445, 90.48.448, 90.74.020, 90.74.030, 90.82.048, 90.90.020, and 90.90.030; reenacting and amending RCW 76.09.060 and 79A.05.255; adding a new section to chapter 77.55 RCW; adding new sections to chapter 90.48 RCW; adding a new section to chapter 76.09 RCW; creating a new section; recodifying RCW 77.55.121; and repealing RCW 79.13.610, 79.105.220, 79.135.230, 79.135.310, 79.135.430, 79.145.030, 79A.05.670, 79A.05.735, 79A.50.070, 76.09.160, and 77.12.360.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The legislature finds that the state of
Washington maintains at least twelve state agencies that exist either
wholly or in part to manage, regulate, mediate, or enforce the state's
public and private natural resources, many of which have overlapping
jurisdiction and authorities.
(2) The legislature finds that the overlap of state natural
resources agencies creates unnecessary expenses for the state
government, confusion for the state's citizens, and hampers private
sector economic development.
(3) The legislature finds that it is important for state agencies
to communicate, share resources, and provide comments during each
other's rule-making processes. However, it is unnecessarily
duplicative for more than one state agency to be involved in the
implementation or enforcement of any one program.
Sec. 2 RCW 76.09.360 and 1997 c 290 s 2 are each amended to read
as follows:
The department ((together with the department of fish and wildlife,
and the department of ecology relating to water quality protection,))
shall develop a suitable process to permit landowners to secure all
permits required for the conduct of forest practices ((in a single
multiyear permit)) to be ((jointly)) issued only by the ((departments
and the departments shall report their findings to the legislature not
later than December 31, 2000)) department.
NEW SECTION. Sec. 3 A new section is added to chapter 77.55 RCW
to read as follows:
The requirements of RCW 77.55.021 are to be considered satisfied
for any project that is required under chapter 76.09 RCW to submit a
forest practices application or that is associated with any project
that is required under chapter 76.09 RCW to submit a forest practices
application.
Sec. 4 RCW 76.09.040 and 2009 c 246 s 1 are each amended to read
as follows:
(1) Where necessary to accomplish the purposes and policies stated
in RCW 76.09.010, and to implement the provisions of this chapter, the
board shall adopt forest practices rules pursuant to chapter 34.05 RCW
and in accordance with the procedures enumerated in this section that:
(a) Establish minimum standards for forest practices;
(b) Provide procedures for the voluntary development of resource
management plans which may be adopted as an alternative to the minimum
standards in (a) of this subsection if the plan is consistent with the
purposes and policies stated in RCW 76.09.010 and the plan meets or
exceeds the objectives of the minimum standards;
(c) Set forth necessary administrative provisions;
(d) Establish procedures for the collection and administration of
forest practice fees as set forth by this chapter; and
(e) Allow for the development of watershed analyses.
Forest practices rules pertaining to water quality protection shall
be adopted by the board after reaching agreement with the director of
the department of ecology or the director's designee on the board with
respect thereto. All other forest practices rules shall be adopted by
the board.
Forest practices rules shall be administered and enforced by either
the department or the local governmental entity as provided in this
chapter. Such rules shall be adopted and administered so as to give
consideration to all purposes and policies set forth in RCW 76.09.010.
(2) The board shall prepare proposed forest practices rules((. In
addition to any forest practices rules relating to water quality
protection proposed by the board, the department of ecology may submit
to the board)) including proposed forest practices rules relating to
water quality protection.
Prior to initiating the rule-making process, the proposed rules
shall be submitted for review and comments to the department of fish
and wildlife, the department of ecology, and to the counties of the
state. After receipt of the proposed forest practices rules, the
department of fish and wildlife, the department of ecology, and the
counties of the state shall have thirty days in which to review and
submit comments to the board((, and to the department of ecology with
respect to its proposed rules relating to water quality protection)).
After the expiration of such thirty day period the board ((and the
department of ecology)) shall jointly hold one or more hearings on the
proposed rules pursuant to chapter 34.05 RCW. At such hearing(s) any
county may propose specific forest practices rules relating to problems
existing within such county. The board may adopt ((and the department
of ecology may approve)) such proposals if they find the proposals are
consistent with the purposes and policies of this chapter.
(3) The board shall establish by rule a program for the acquisition
of riparian open space and critical habitat for threatened or
endangered species as designated by the board. Acquisition must be a
conservation easement. Lands eligible for acquisition are forest lands
within unconfined channel migration zones or forest lands containing
critical habitat for threatened or endangered species as designated by
the board. Once acquired, these lands may be held and managed by the
department, transferred to another state agency, transferred to an
appropriate local government agency, or transferred to a private
nonprofit nature conservancy corporation, as defined in RCW 64.04.130,
in fee or transfer of management obligation. The board shall adopt
rules governing the acquisition by the state or donation to the state
of such interest in lands including the right of refusal if the lands
are subject to unacceptable liabilities. The rules shall include
definitions of qualifying lands, priorities for acquisition, and
provide for the opportunity to transfer such lands with limited
warranties and with a description of boundaries that does not require
full surveys where the cost of securing the surveys would be
unreasonable in relation to the value of the lands conveyed. The rules
shall provide for the management of the lands for ecological protection
or fisheries enhancement. For the purposes of conservation easements
entered into under this section, the following apply: (a) For
conveyances of a conservation easement in which the landowner conveys
an interest in the trees only, the compensation must include the timber
value component, as determined by the cruised volume of any timber
located within the channel migration zone or critical habitat for
threatened or endangered species as designated by the board, multiplied
by the appropriate quality code stumpage value for timber of the same
species shown on the appropriate table used for timber harvest excise
tax purposes under RCW 84.33.091; (b) for conveyances of a conservation
easement in which the landowner conveys interests in both land and
trees, the compensation must include the timber value component in (a)
of this subsection plus such portion of the land value component as
determined just and equitable by the department. The land value
component must be the acreage of qualifying channel migration zone or
critical habitat for threatened or endangered species as determined by
the board, to be conveyed, multiplied by the average per acre value of
all commercial forest land in western Washington or the average for
eastern Washington, whichever average is applicable to the qualifying
lands. The department must determine the western and eastern
Washington averages based on the land value tables established by RCW
84.33.140 and revised annually by the department of revenue.
(4) Subject to appropriations sufficient to cover the cost of such
an acquisition program and the related costs of administering the
program, the department must establish a conservation easement in land
that an owner tenders for purchase; provided that such lands have been
taxed as forest lands and are located within an unconfined channel
migration zone or contain critical habitat for threatened or endangered
species as designated by the board. Lands acquired under this section
shall become riparian or habitat open space. These acquisitions shall
not be deemed to trigger the compensating tax of chapters 84.33 and
84.34 RCW.
(5) Instead of offering to sell interests in qualifying lands,
owners may elect to donate the interests to the state.
(6) Any acquired interest in qualifying lands by the state under
this section shall be managed as riparian open space or critical
habitat.
Sec. 5 RCW 76.09.050 and 2005 c 146 s 1003 are each amended to
read as follows:
(1) The board shall establish by rule which forest practices shall
be included within each of the following classes:
Class I: Minimal or specific forest practices that have no direct
potential for damaging a public resource and that may be conducted
without submitting an application or a notification except that when
the regulating authority is transferred to a local governmental entity,
those Class I forest practices that involve timber harvesting or road
construction within "urban growth areas," designated pursuant to
chapter 36.70A RCW, are processed as Class IV forest practices, but are
not subject to environmental review under chapter 43.21C RCW;
Class II: Forest practices which have a less than ordinary
potential for damaging a public resource that may be conducted without
submitting an application and may begin five calendar days, or such
lesser time as the department may determine, after written notification
by the operator, in the manner, content, and form as prescribed by the
department, is received by the department. However, the work may not
begin until all forest practice fees required under RCW 76.09.065 have
been received by the department. Class II shall not include forest
practices:
(a) On lands platted after January 1, 1960, as provided in chapter
58.17 RCW or on lands that have or are being converted to another use;
(b) Which require approvals under the provisions of the hydraulics
act, RCW 77.55.021;
(c) Within "shorelines of the state" as defined in RCW 90.58.030;
(d) Excluded from Class II by the board; or
(e) Including timber harvesting or road construction within "urban
growth areas," designated pursuant to chapter 36.70A RCW, which are
Class IV;
Class III: Forest practices other than those contained in Class I,
II, or IV. A Class III application must be approved or disapproved by
the department within thirty calendar days from the date the department
receives the application. However, the applicant may not begin work on
that forest practice until all forest practice fees required under RCW
76.09.065 have been received by the department;
Class IV: Forest practices other than those contained in Class I
or II: (a) On lands platted after January 1, 1960, as provided in
chapter 58.17 RCW, (b) on lands that have or are being converted to
another use, (c) on lands which, pursuant to RCW 76.09.070 as now or
hereafter amended, are not to be reforested because of the likelihood
of future conversion to urban development, (d) involving timber
harvesting or road construction on lands that are contained within
"urban growth areas," designated pursuant to chapter 36.70A RCW, except
where the forest landowner provides: (i) A written statement of intent
signed by the forest landowner not to convert to a use other than
commercial forest product operations for ten years, accompanied by
either a written forest management plan acceptable to the department or
documentation that the land is enrolled under the provisions of chapter
84.33 RCW; or (ii) a conversion option harvest plan approved by the
local governmental entity and submitted to the department as part of
the application, and/or (e) which have a potential for a substantial
impact on the environment and therefore require an evaluation by the
department as to whether or not a detailed statement must be prepared
pursuant to the state environmental policy act, chapter 43.21C RCW.
Such evaluation shall be made within ten days from the date the
department receives the application: PROVIDED, That nothing herein
shall be construed to prevent any local or regional governmental entity
from determining that a detailed statement must be prepared for an
action pursuant to a Class IV forest practice taken by that
governmental entity concerning the land on which forest practices will
be conducted. A Class IV application must be approved or disapproved
by the department within thirty calendar days from the date the
department receives the application, unless the department determines
that a detailed statement must be made, in which case the application
must be approved or disapproved by the department within sixty calendar
days from the date the department receives the application, unless the
commissioner of public lands, through the promulgation of a formal
order, determines that the process cannot be completed within such
period. However, the applicant may not begin work on that forest
practice until all forest practice fees required under RCW 76.09.065
have been received by the department.
Forest practices under Classes I, II, and III are exempt from the
requirements for preparation of a detailed statement under the state
environmental policy act.
(2) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, no Class
II, Class III, or Class IV forest practice shall be commenced or
continued after January 1, 1975, unless the department has received a
notification with regard to a Class II forest practice or approved an
application with regard to a Class III or Class IV forest practice
containing all information required by RCW 76.09.060 as now or
hereafter amended. However, in the event forest practices regulations
necessary for the scheduled implementation of this chapter and RCW
90.48.420 have not been adopted in time to meet such schedules, the
department shall have the authority to regulate forest practices and
approve applications on such terms and conditions consistent with this
chapter and RCW 90.48.420 and the purposes and policies of RCW
76.09.010 until applicable forest practices regulations are in effect.
(3) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, if a
notification or application is delivered in person to the department by
the operator or the operator's agent, the department shall immediately
provide a dated receipt thereof. In all other cases, the department
shall immediately mail a dated receipt to the operator.
(4) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, forest
practices shall be conducted in accordance with the forest practices
regulations, orders and directives as authorized by this chapter or the
forest practices regulations, and the terms and conditions of any
approved applications.
(5) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, the
department of natural resources shall notify the applicant in writing
of either its approval of the application or its disapproval of the
application and the specific manner in which the application fails to
comply with the provisions of this section or with the forest practices
regulations. Except as provided otherwise in this section, if the
department fails to either approve or disapprove an application or any
portion thereof within the applicable time limit, the application shall
be deemed approved and the operation may be commenced: PROVIDED, That
this provision shall not apply to applications which are neither
approved nor disapproved pursuant to the provisions of subsection (7)
of this section: PROVIDED, FURTHER, That if seasonal field conditions
prevent the department from being able to properly evaluate the
application, the department may issue an approval conditional upon
further review within sixty days: PROVIDED, FURTHER, That the
department shall have until April 1, 1975, to approve or disapprove an
application involving forest practices allowed to continue to April 1,
1975, under the provisions of subsection (2) of this section. Upon
receipt of any notification or any satisfactorily completed application
the department shall in any event no later than two business days after
such receipt transmit a copy to the ((departments of ecology and fish
and wildlife, and to the)) county, city, or town in whose jurisdiction
the forest practice is to be commenced. ((Any comments by such
agencies shall be directed to the department of natural resources.))
(6) For those forest practices regulated by the board and the
department, if the county, city, or town believes that an application
is inconsistent with this chapter, the forest practices regulations, or
any local authority consistent with RCW 76.09.240 as now or hereafter
amended, it may so notify the department and the applicant, specifying
its objections.
(7) For those forest practices regulated by the board and the
department, the department shall not approve portions of applications
to which a county, city, or town objects if:
(a) The department receives written notice from the county, city,
or town of such objections within fourteen business days from the time
of transmittal of the application to the county, city, or town, or one
day before the department acts on the application, whichever is later;
and
(b) The objections relate to lands either:
(i) Platted after January 1, 1960, as provided in chapter 58.17
RCW; or
(ii) On lands that have or are being converted to another use.
The department shall either disapprove those portions of such
application or appeal the county, city, or town objections to the
appeals board. If the objections related to subparagraphs (b)(i) and
(ii) of this subsection are based on local authority consistent with
RCW 76.09.240 as now or hereafter amended, the department shall
disapprove the application until such time as the county, city, or town
consents to its approval or such disapproval is reversed on appeal.
The applicant shall be a party to all department appeals of county,
city, or town objections. Unless the county, city, or town either
consents or has waived its rights under this subsection, the department
shall not approve portions of an application affecting such lands until
the minimum time for county, city, or town objections has expired.
(8) For those forest practices regulated by the board and the
department, in addition to any rights under the above paragraph, the
county, city, or town may appeal any department approval of an
application with respect to any lands within its jurisdiction. The
appeals board may suspend the department's approval in whole or in part
pending such appeal where there exists potential for immediate and
material damage to a public resource.
(9) For those forest practices regulated by the board and the
department, appeals under this section shall be made to the appeals
board in the manner and time provided in RCW 76.09.220(8). In such
appeals there shall be no presumption of correctness of either the
county, city, or town or the department position.
(10) For those forest practices regulated by the board and the
department, the department shall, within four business days notify the
county, city, or town of all notifications, approvals, and disapprovals
of an application affecting lands within the county, city, or town,
except to the extent the county, city, or town has waived its right to
such notice.
(11) For those forest practices regulated by the board and the
department, a county, city, or town may waive in whole or in part its
rights under this section, and may withdraw or modify any such waiver,
at any time by written notice to the department.
(12) Notwithstanding subsections (2) through (5) of this section,
forest practices applications or notifications are not required for
exotic insect and disease control operations conducted in accordance
with RCW 76.09.060(8) where eradication can reasonably be expected.
Sec. 6 RCW 76.09.060 and 2007 c 480 s 11 and 2007 c 106 s 1 are
each reenacted and amended to read as follows:
(1) The department shall prescribe the form and contents of the
notification and application. The forest practices rules shall specify
by whom and under what conditions the notification and application
shall be signed or otherwise certified as acceptable. Activities
conducted by the department or a contractor under the direction of the
department under the provisions of RCW 76.04.660, shall be exempt from
the landowner signature requirement on any forest practice application
required to be filed. The application or notification shall be
delivered in person to the department, sent by first-class mail to the
department or electronically filed in a form defined by the department.
The form for electronic filing shall be readily convertible to a paper
copy, which shall be available to the public pursuant to chapter 42.56
RCW. The information required may include, but is not limited to:
(a) Name and address of the forest landowner, timber owner, and
operator;
(b) Description of the proposed forest practice or practices to be
conducted;
(c) Legal description and tax parcel identification numbers of the
land on which the forest practices are to be conducted;
(d) Planimetric and topographic maps showing location and size of
all lakes and streams and other public waters in and immediately
adjacent to the operating area and showing all existing and proposed
roads and major tractor roads;
(e) Description of the silvicultural, harvesting, or other forest
practice methods to be used, including the type of equipment to be used
and materials to be applied;
(f) Proposed plan for reforestation and for any revegetation
necessary to reduce erosion potential from roadsides and yarding roads,
as required by the forest practices rules;
(g) Soil, geological, and hydrological data with respect to forest
practices;
(h) The expected dates of commencement and completion of all forest
practices specified in the application;
(i) Provisions for continuing maintenance of roads and other
construction or other measures necessary to afford protection to public
resources;
(j) An affirmation that the statements contained in the
notification or application are true; and
(k) All necessary application or notification fees.
(2) Long range plans may be submitted to the department for review
and consultation.
(3) The application for a forest practice or the notification of a
forest practice is subject to the reforestation requirement of RCW
76.09.070.
(a) If the application states that any land will be or is intended
to be converted:
(i) The reforestation requirements of this chapter and of the
forest practices rules shall not apply if the land is in fact converted
unless applicable alternatives or limitations are provided in forest
practices rules issued under RCW 76.09.070;
(ii) Completion of such forest practice operations shall be deemed
conversion of the lands to another use for purposes of chapters 84.33
and 84.34 RCW unless the conversion is to a use permitted under a
current use tax agreement permitted under chapter 84.34 RCW;
(iii) The forest practices described in the application are subject
to applicable county, city, town, and regional governmental authority
permitted under RCW 76.09.240 as well as the forest practices rules.
(b) Except as provided elsewhere in this section, if the landowner
harvests without an approved application or notification or the
landowner does not state that any land covered by the application or
notification will be or is intended to be converted, and the department
or the county, city, town, or regional governmental entity becomes
aware of conversion activities to a use other than commercial timber
operations, as that term is defined in RCW 76.09.020, then the
department shall send to ((the department of ecology and)) the
appropriate county, city, town, and regional governmental entities the
following documents:
(i) A notice of a conversion to nonforestry use;
(ii) A copy of the applicable forest practices application or
notification, if any; and
(iii) Copies of any applicable outstanding final orders or
decisions issued by the department related to the forest practices
application or notification.
(c) Failure to comply with the reforestation requirements contained
in any final order or decision shall constitute a removal of
designation under the provisions of RCW 84.33.140, and a change of use
under the provisions of RCW 84.34.080, and, if applicable, shall
subject such lands to the payments and/or penalties resulting from such
removals or changes.
(d) Conversion to a use other than commercial forest product
operations within six years after approval of the forest practices
application or notification without the consent of the county, city, or
town shall constitute a violation of each of the county, municipal
city, town, and regional authorities to which the forest practice
operations would have been subject if the application had stated an
intent to convert.
(e) Land that is the subject of a notice of conversion to a
nonforestry use produced by the department and sent to the department
of ecology and a local government under this subsection is subject to
the development prohibition and conditions provided in RCW 76.09.460.
(f) Landowners who have not stated an intent to convert the land
covered by an application or notification and who decide to convert the
land to a nonforestry use within six years of receiving an approved
application or notification must do so in a manner consistent with RCW
76.09.470.
(g) The application or notification must include a statement
requiring an acknowledgment by the forest landowner of his or her
intent with respect to conversion and acknowledging that he or she is
familiar with the effects of this subsection.
(4) Whenever an approved application authorizes a forest practice
which, because of soil condition, proximity to a water course or other
unusual factor, has a potential for causing material damage to a public
resource, as determined by the department, the applicant shall, when
requested on the approved application, notify the department two days
before the commencement of actual operations.
(5) Before the operator commences any forest practice in a manner
or to an extent significantly different from that described in a
previously approved application or notification, there shall be
submitted to the department a new application or notification form in
the manner set forth in this section.
(6) Except as provided in RCW 76.09.350(4), the notification to or
the approval given by the department to an application to conduct a
forest practice shall be effective for a term of two years from the
date of approval or notification and shall not be renewed unless a new
application is filed and approved or a new notification has been filed.
At the option of the applicant, an application or notification may be
submitted to cover a single forest practice or a number of forest
practices within reasonable geographic or political boundaries as
specified by the department. An application or notification that
covers more than one forest practice may have an effective term of more
than two years. The board shall adopt rules that establish standards
and procedures for approving an application or notification that has an
effective term of more than two years. Such rules shall include
extended time periods for application or notification approval or
disapproval. On an approved application with a term of more than two
years, the applicant shall inform the department before commencing
operations.
(7) Notwithstanding any other provision of this section, no prior
application or notification shall be required for any emergency forest
practice necessitated by fire, flood, windstorm, earthquake, or other
emergency as defined by the board, but the operator shall submit an
application or notification, whichever is applicable, to the department
within forty-eight hours after commencement of such practice or as
required by local regulations.
(8) Forest practices applications or notifications are not required
for forest practices conducted to control exotic forest insect or
disease outbreaks, when conducted by or under the direction of the
department of agriculture in carrying out an order of the governor or
director of the department of agriculture to implement pest control
measures as authorized under chapter 17.24 RCW, and are not required
when conducted by or under the direction of the department in carrying
out emergency measures under a forest health emergency declaration by
the commissioner of public lands as provided in RCW 76.06.130.
(a) For the purposes of this subsection, exotic forest insect or
disease has the same meaning as defined in RCW 76.06.020.
(b) In order to minimize adverse impacts to public resources,
control measures must be based on integrated pest management, as
defined in RCW 17.15.010, and must follow forest practices rules
relating to road construction and maintenance, timber harvest, and
forest chemicals, to the extent possible without compromising control
objectives.
(c) Agencies conducting or directing control efforts must provide
advance notice to the appropriate regulatory staff of the department of
the operations that would be subject to exemption from forest practices
application or notification requirements.
(d) When the appropriate regulatory staff of the department are
notified under (c) of this subsection, they must consult with the
landowner, interested agencies, and affected tribes, and assist the
notifying agencies in the development of integrated pest management
plans that comply with forest practices rules as required under (b) of
this subsection.
(e) Nothing under this subsection relieves agencies conducting or
directing control efforts from requirements of the federal clean water
act as administered by the department of ecology under RCW 90.48.260.
(f) Forest lands where trees have been cut as part of an exotic
forest insect or disease control effort under this subsection are
subject to reforestation requirements under RCW 76.09.070.
(g) The exemption from obtaining approved forest practices
applications or notifications does not apply to forest practices
conducted after the governor, the director of the department of
agriculture, or the commissioner of public lands have declared that an
emergency no longer exists because control objectives have been met,
that there is no longer an imminent threat, or that there is no longer
a good likelihood of control.
Sec. 7 RCW 76.09.100 and 1975 1st ex.s. c 200 s 7 are each
amended to read as follows:
If the department ((of ecology)) determines that a person has
failed to comply with the forest practices regulations relating to
water quality protection, and ((that the department of natural
resources has not issued a stop work order or notice to comply, the
department of ecology shall inform the department thereof. If)) the
department of natural resources fails to take authorized enforcement
action within twenty-four hours under RCW 76.09.080, 76.09.090,
76.09.120, or 76.09.130, the ((department of ecology may petition to
the chairman)) chair of the appeals board((, who)) shall, within forty-eight hours, either deny ((the petition)) further consideration or
direct the department of natural resources to immediately issue a stop
work order or notice to comply, or to impose a penalty. No civil or
criminal penalties shall be imposed for past actions or omissions if
such actions or omissions were conducted pursuant to an approval or
directive of the department of natural resources.
Sec. 8 RCW 76.09.150 and 2000 c 11 s 7 are each amended to read
as follows:
(1) The department shall make inspections of forest lands, before,
during and after the conducting of forest practices as necessary for
the purpose of ensuring compliance with this chapter and the forest
practices rules and to ensure that no material damage occurs to the
natural resources of this state as a result of such practices.
(2) Any duly authorized representative of the department shall have
the right to enter upon forest land at any reasonable time to enforce
the provisions of this chapter and the forest practices rules.
(3) The department ((or the department of ecology)) may apply for
an administrative inspection warrant to either Thurston county superior
court, or the superior court in the county in which the property is
located. An administrative inspection warrant may be issued where:
(a) The department has attempted an inspection of forest lands
under this chapter to ensure compliance with this chapter and the
forest practices rules or to ensure that no potential or actual
material damage occurs to the natural resources of this state, and
access to all or part of the forest lands has been actually or
constructively denied; or
(b) The department has reasonable cause to believe that a violation
of this chapter or of rules adopted under this chapter is occurring or
has occurred.
(4) In connection with any watershed analysis, any review of a
pending application by an identification team appointed by the
department, any compliance studies, any effectiveness monitoring, or
other research that has been agreed to by a landowner, the department
may invite representatives of other agencies, tribes, and interest
groups to accompany a department representative and, at the landowner's
election, the landowner, on any such inspections. Reasonable efforts
shall be made by the department to notify the landowner of the persons
being invited onto the property and the purposes for which they are
being invited.
Sec. 9 RCW 76.09.260 and 1974 ex.s. c 137 s 26 are each amended
to read as follows:
The department shall represent the state's interest in matters
pertaining to forestry and forest practices, including federal matters
and matters relating to representing the state for the purposes of the
federal water pollution control act as it relates to forest practices,
and may consult with and cooperate with the federal government and
other states, as well as other public agencies, in the study and
enhancement of forestry and forest practices. The department is
authorized to accept, receive, disburse, and administer grants or other
funds or gifts from any source, including private individuals or
agencies, the federal government, and other public agencies for the
purposes of carrying out the provisions of this chapter.
((Nothing in this chapter shall modify the designation of the
department of ecology as the agency representing the state for all
purposes of the Federal Water Pollution Control Act.))
Sec. 10 RCW 76.09.470 and 2007 c 106 s 3 are each amended to read
as follows:
(1) If a landowner who did not state an intent to convert his or
her land to a nonforestry use decides to convert his or her land to a
nonforestry use within six years of receiving an approved forest
practices application or notification under this chapter, the landowner
must:
(a) Stop all forest practices activities on the parcels subject to
the proposed land use conversion to a nonforestry use;
(b) Contact the ((department of ecology and the)) applicable
county, city, town, or regional governmental entity to begin the
permitting process; and
(c) Notify the department and withdraw any applicable applications
or notifications or request a new application for conversion.
(2) Upon being contacted by a landowner under this section, the
county, city, town, or regional governmental entity must:
(a) Notify the department and request from the department the
status of any applicable forest practices applications, notifications,
or final orders or decisions; and
(b) Complete the following activities:
(i) Require that the landowner be in full compliance with chapter
43.21C RCW, if applicable;
(ii) Receive notification from the department that the landowner
has resolved any outstanding final orders or decisions issued by the
department; and
(iii) Make a determination as to whether or not the condition of
the land in question is in full compliance with local ordinances and
regulations. If full compliance is not found, a mitigation plan to
address violations of local ordinances or regulations must be required
for the parcel in question by the county, city, town, or regional
governmental entity. Required mitigation plans must be prepared by the
landowner and approved by the county, city, town, or regional
governmental entity. Once approved, the mitigation plan must be
implemented by the landowner. Mitigation measures that may be required
include, but are not limited to, revegetation requirements to plant and
maintain trees of sufficient maturity and appropriate species
composition to restore critical area and buffer function or to be in
compliance with applicable local government regulations.
NEW SECTION. Sec. 11 A new section is added to chapter 90.48 RCW
to read as follows:
All responsibilities and duties of the department under this
chapter are transferred to the department of natural resources for any
discharge or other water quality issue related to a project required to
obtain a forest practices approval under chapter 76.09 RCW.
Sec. 12 RCW 90.64.010 and 2009 c 143 s 2 are each amended to read
as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Advisory and oversight committee" means a balanced committee
of agency, dairy farm, and interest group representatives convened to
provide oversight and direction to the dairy nutrient management
program.
(2) "Bypass" means the intentional diversion of waste streams from
any portion of a treatment facility.
(3) "Catastrophic" means a tornado, hurricane, earthquake, flood,
or other extreme condition that causes an overflow from a required
waste retention structure.
(4) "Certification" means:
(a) The acknowledgment by a local conservation district that a
dairy producer has constructed or otherwise put in place the elements
necessary to implement his or her dairy nutrient management plan; and
(b) The acknowledgment by a dairy producer that he or she is
managing dairy nutrients as specified in his or her approved dairy
nutrient management plan.
(5) "Chronic" means a series of wet weather events that precludes
the proper operation of a dairy nutrient management system that is
designed for the current herd size.
(6) "Conservation commission" or "commission" means the
conservation commission under chapter 89.08 RCW.
(7) "Conservation districts" or "district" means a subdivision of
state government organized under chapter 89.08 RCW.
(8) "Concentrated dairy animal feeding operation" means a dairy
animal feeding operation subject to regulation under this chapter which
the director designates under RCW 90.64.020 or meets the following
criteria:
(a) Has more than seven hundred mature dairy cows, whether milked
or dry cows, that are confined; or
(b) Has more than two hundred head of mature dairy cattle, whether
milked or dry cows, that are confined and either:
(i) From which pollutants are discharged into navigable waters
through a manmade ditch, flushing system, or other similar manmade
device; or
(ii) From which pollutants are discharged directly into surface or
ground waters of the state that originate outside of and pass over,
across, or through the facility or otherwise come into direct contact
with the animals confined in the operation.
(9) "Dairy animal feeding operation" means a lot or facility where
the following conditions are met:
(a) Dairy animals that have been, are, or will be stabled or
confined and fed for a total of forty-five days or more in any twelve-month period; and
(b) Crops, vegetation forage growth, or postharvest residues are
not sustained in the normal growing season over any portion of the lot
or facility. Two or more dairy animal feeding operations under common
ownership are considered, for the purposes of this chapter, to be a
single dairy animal feeding operation if they adjoin each other or if
they use a common area for land application of wastes.
(10) "Dairy farm" means any farm that is licensed to produce milk
under chapter 15.36 RCW.
(11) "Dairy nutrient" means any organic waste produced by dairy
cows or a dairy farm operation.
(12) "Dairy nutrient management plan" means a plan meeting the
requirements established under RCW 90.64.026.
(13) "Dairy producer" means a person who owns or operates a dairy
farm.
(14) "Department" means the department of ((ecology under chapter
43.21A RCW)) agriculture.
(15) "Director" means the director of the department ((of
ecology,)) or his or her designee.
(16) "Upset" means an exceptional incident in which there is an
unintentional and temporary noncompliance with technology-based permit
effluent limitations because of factors beyond the reasonable control
of the dairy. An upset does not include noncompliance to the extent
caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventive maintenance, or
careless or improper operation.
(17) "Violation" means the following acts or omissions:
(a) A discharge of pollutants into the waters of the state, except
those discharges that are due to a chronic or catastrophic event, or to
an upset as provided in 40 C.F.R. Sec. 122.41, or to a bypass as
provided in 40 C.F.R. Sec. 122.41, and that occur when:
(i) A dairy producer has a current national pollutant discharge
elimination system permit with a wastewater system designed, operated,
and maintained for the current herd size and that contains all process-generated wastewater plus average annual precipitation minus
evaporation plus contaminated storm water runoff from a twenty-five
year, twenty-four hour rainfall event for that specific location, and
the dairy producer has complied with all permit conditions, including
dairy nutrient management plan conditions for appropriate land
application practices; or
(ii) A dairy producer does not have a national pollutant discharge
elimination system permit, but has complied with all of the elements of
a dairy nutrient management plan that: Prevents the discharge of
pollutants to waters of the state, is commensurate with the dairy
producer's current herd size, and is approved and certified under RCW
90.64.026;
(b) Failure to register as required under RCW 90.64.017;
(c)(i) Until July 1, 2011, failure to keep for a period of three
years all records necessary to show that applications of nutrients to
the land were within acceptable agronomic rates, unless otherwise
required by law; and
(ii) Beginning July 1, 2011, failure to keep for a period of five
years all records necessary to show that applications of nutrients to
the land were within acceptable agronomic rates;
(d) The lack of an approved dairy nutrient management plan by July
1, 2002; or
(e) The lack of a certified dairy nutrient management plan for a
dairy farm after December 31, 2003.
Sec. 13 RCW 90.64.020 and 1993 c 221 s 3 are each amended to read
as follows:
(1) The director of the department ((of ecology)) may designate any
dairy animal feeding operation as a concentrated dairy animal feeding
operation upon determining that it is a significant contributor of
pollution to the surface or ground waters of the state. In making this
designation the director shall consider the following factors:
(a) The size of the animal feeding operation and the amount of
wastes reaching waters of the state;
(b) The location of the animal feeding operation relative to waters
of the state;
(c) The means of conveyance of animal wastes and process waters
into the waters of the state;
(d) The slope, vegetation, rainfall, and other factors affecting
the likelihood or frequency of discharge of animal wastes and process
waste waters into the waters of the state; and
(e) Other relevant factors as established by the department by
rule.
(2) A notice of intent to apply for a permit shall not be required
from a concentrated dairy animal feeding operation designated under
this section until the director has conducted an on-site inspection of
the operation and determined that the operation should and could be
regulated under the permit program.
Sec. 14 RCW 90.64.170 and 2005 c 510 s 1 are each amended to read
as follows:
(1) The legislature finds that a livestock nutrient management
program is essential to protecting the quality of the waters of the
state and ensuring a healthy and productive livestock industry.
(2) The department((s of agriculture and ecology)) shall examine
((their)) its current statutory authorities and provide the legislature
with recommendations for statutory changes to fully implement a
livestock nutrient management program within the department ((of
agriculture)) for concentrated animal feeding operations, animal
feeding operations, and dairies, as authorized in RCW 90.48.260((,
90.64.813,)) and 90.64.901. ((In developing recommended statutory
changes, the departments shall consult with the livestock nutrient
management program development and oversight committee created in RCW
90.64.813.)) The recommendations must be submitted to the legislature
by the department((s of agriculture and ecology)) prior to applying to
the environmental protection agency for delegated authority to
administer the CAFO portion of the national pollutant discharge
elimination system permit program under the federal clean water act.
(3) For purposes of chapter 510, Laws of 2005, animal feeding
operations (AFOs) and concentrated animal feeding operations (CAFOs)
have the same meaning as defined in 40 C.F.R. 122.23.
(4) This section applies to all operations that meet the definition
of an AFO. This section does not apply to true pasture and rangeland
operations that do not meet the definition of AFO, however, such
operations may have confinement areas that may qualify as an AFO.
NEW SECTION. Sec. 15 A new section is added to chapter 90.48 RCW
to read as follows:
All responsibilities and duties of the department under this
chapter are transferred to the department of agriculture with regard to
any matters falling within the scope of chapter 90.64 RCW.
Sec. 16 RCW 90.48.260 and 2007 c 341 s 55 are each amended to
read as follows:
Unless otherwise designated in this chapter, the department of
ecology is hereby designated as the state water pollution control
agency for all purposes of the federal clean water act as it exists on
February 4, 1987, and is hereby authorized to participate fully in the
programs of the act as well as to take all action necessary to secure
to the state the benefits and to meet the requirements of that act.
With regard to the national estuary program established by section 320
of that act, the department shall exercise its responsibility jointly
with the Puget Sound partnership, created in RCW 90.71.210. The
department of ecology may delegate its authority under this chapter,
including its national pollutant discharge elimination permit system
authority and duties regarding animal feeding operations and
concentrated animal feeding operations, to the department of
agriculture through a memorandum of understanding. Until any such
delegation receives federal approval, the department of agriculture's
adoption or issuance of animal feeding operation and concentrated
animal feeding operation rules, permits, programs, and directives
pertaining to water quality shall be accomplished after reaching
agreement with the director of the department of ecology. Adoption or
issuance and implementation shall be accomplished so that compliance
with such animal feeding operation and concentrated animal feeding
operation rules, permits, programs, and directives will achieve
compliance with all federal and state water pollution control laws.
The powers granted herein include, among others, and notwithstanding
any other provisions of chapter 90.48 RCW or otherwise, the following:
(1) Complete authority to establish and administer a comprehensive
state point source waste discharge or pollution discharge elimination
permit program which will enable the department to qualify for full
participation in any national waste discharge or pollution discharge
elimination permit system and will allow the department to be the sole
agency issuing permits required by such national system operating in
the state of Washington subject to the provisions of RCW 90.48.262(2).
Program elements authorized herein may include, but are not limited to:
(a) Effluent treatment and limitation requirements together with timing
requirements related thereto; (b) applicable receiving water quality
standards requirements; (c) requirements of standards of performance
for new sources; (d) pretreatment requirements; (e) termination and
modification of permits for cause; (f) requirements for public notices
and opportunities for public hearings; (g) appropriate relationships
with the secretary of the army in the administration of his
responsibilities which relate to anchorage and navigation, with the
administrator of the environmental protection agency in the performance
of his duties, and with other governmental officials under the federal
clean water act; (h) requirements for inspection, monitoring, entry,
and reporting; (i) enforcement of the program through penalties,
emergency powers, and criminal sanctions; (j) a continuing planning
process; and (k) user charges.
(2) The power to establish and administer state programs in a
manner which will insure the procurement of moneys, whether in the form
of grants, loans, or otherwise; to assist in the construction,
operation, and maintenance of various water pollution control
facilities and works; and the administering of various state water
pollution control management, regulatory, and enforcement programs.
(3) The power to develop and implement appropriate programs
pertaining to continuing planning processes, area-wide waste treatment
management plans, and basin planning.
The governor shall have authority to perform those actions required
of him or her by the federal clean water act.
Sec. 17 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 section 3 of this act, 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 be submitted in
person or by registered mail 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.
(3)(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) 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 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) 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.
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)(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) 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.
(7) A permittee may request modification of a permit due to changed
conditions. The request must be processed within forty-five calendar
days of receipt of the written request. 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)(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) 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) 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 as a condition of issuing a
permit under this subsection.
(11)(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) 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) 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 as a
condition of issuing a permit under this subsection.
Sec. 18 RCW 77.12.755 and 2003 c 311 s 10 are each amended to
read as follows:
((In coordination with the department of natural resources and lead
entity groups,)) The department must establish a ranked inventory of
fish passage barriers on land owned by small forest landowners based on
the principle of fixing the worst first within a watershed consistent
with the fish passage priorities of the forest and fish report. The
department shall first gather and synthesize all available existing
information about the locations and impacts of fish passage barriers in
Washington. This information must include, but not be limited to, the
most recently available limiting factors analysis conducted pursuant to
RCW 77.85.060(2), the stock status information contained in the
department of fish and wildlife salmonid stock inventory (SASSI), the
salmon and steelhead habitat inventory and assessment project (SSHIAP),
and any comparable science-based assessment when available. The
inventory of fish passage barriers must be kept current and at a
minimum be updated by the beginning of each calendar year. Nothing in
this section grants the department or others additional right of entry
onto private property.
Sec. 19 RCW 77.12.870 and 2009 c 333 s 21 are each amended to
read as follows:
(1) The department((, in consultation with the Northwest straits
commission, the department of natural resources, and other interested
parties,)) must create and maintain a database of known derelict
fishing gear, including the type of gear and its location.
(2) A person who loses or abandons commercial fishing gear within
the waters of the state is encouraged to report the location of the
loss and the type of gear lost to the department within forty-eight
hours of the loss.
Sec. 20 RCW 77.12.878 and 2002 c 281 s 6 are each amended to read
as follows:
(1) The director shall create a rapid response plan in cooperation
with the aquatic nuisance species committee and its member agencies
that describes actions to be taken when a prohibited aquatic animal
species is found to be infesting a water body. These actions include
eradication or control programs where feasible and containment of
infestation where practical through notification, public education, and
the enforcement of regulatory programs.
(2) The commission may adopt rules to implement the rapid response
plan.
(3) The director((, the department of ecology, and the Washington
state parks and recreation commission)) may post signs at water bodies
that are infested with aquatic animal species that are classified as
prohibited aquatic animal species under RCW 77.12.020 or with invasive
species of the plant kingdom. The signs should identify the prohibited
plant and animal species present and warn users of the water body of
the hazards and penalties for possessing and transporting these
species. Educational signs may be placed at uninfested sites.
Sec. 21 RCW 77.15.390 and 2001 c 253 s 40 are each amended to
read as follows:
(1) A person is guilty of unlawful taking of seaweed if the person
takes, possesses, or harvests seaweed and:
(a) The person does not have and possess the license required by
chapter 77.32 RCW for taking seaweed; or
(b) The action violates any rule of the department ((or the
department of natural resources)) regarding seasons, possession limits,
closed areas, closed times, or any other rule addressing the manner or
method of taking, possessing, or harvesting of seaweed.
(2) Unlawful taking of seaweed is a misdemeanor. This does not
affect rights of the state to recover civilly for trespass, conversion,
or theft of state-owned valuable materials.
Sec. 22 RCW 77.44.040 and 1996 c 222 s 4 are each amended to read
as follows:
The goals of the warm water game fish enhancement program are to
improve the fishing for warm water game fish using cost-effective
management. Development of new ponds and lakes shall be an important
and integral part of the program. The department shall work ((with the
department of natural resources)) to coordinate the reclamation of
surface mines and the development of warm water game fish ponds.
Improvement of warm water fishing shall be coordinated with the
protection and conservation of cold water fish populations. This shall
be accomplished by carefully designing the warm water projects to have
minimal adverse effects upon the cold water fish populations. New pond
and lake development should have beneficial effects upon wildlife due
to the increase in lacustrine and wetland habitat that will accompany
the improvement of warm water fish habitat. The department shall not
develop projects that will increase the populations of undesirable or
deleterious fish species such as carp, squawfish, walking catfish, and
others.
Fish culture programs shall be used in conditions where they will
prove to be cost-effective, and may include the purchase of warm water
fish from aquatic farmers defined in RCW 15.85.020. Consideration
should be made for development of urban area enhancement of fishing
opportunity for put-and-take species, such as channel catfish, that are
amenable to production by low-cost fish culture methods. Fish culture
shall also be used for stocking of high value species, such as walleye,
smallmouth bass, and tiger musky. Introduction of special genetic
strains that show high potential for recreational fishing improvement,
including Florida strain largemouth bass and striped bass, shall be
considered.
Transplantation and introduction of exotic warm water fish shall be
carefully reviewed to assure that adverse effects to native fish and
wildlife populations do not occur. This review shall include an
analysis of consequences from disease and parasite introduction.
Population management through the use of fish toxicants, including
rotenone or derris root, shall be an integral part of the warm water
game fish enhancement program. However, any use of fish toxicants
shall be subject to a thorough review to prevent adverse effects to
cold water fish, desirable warm water fish, and other biota.
Eradication of deleterious fish species shall be a goal of the program.
Habitat improvement shall be a major aspect of the warm water game
fish enhancement program. Habitat improvement opportunities shall be
defined with scientific investigations, field surveys, and by using the
extensive experience of other state management entities. Installation
of cover, structure, water flow control structures, screens, spawning
substrate, vegetation control, and other management techniques shall be
fully used. The department shall work to gain access to privately
owned waters that can be developed with habitat improvements to improve
the warm water resource for public fishing.
The department shall use the resources of cooperative groups to
assist in the planning and implementation of the warm water game fish
enhancement program. In the development of the program the department
shall actively involve the organized fishing clubs that primarily fish
for warm water fish. The warm water fish enhancement program shall be
cooperative between the department and private landowners; private
landowners shall not be required to alter the uses of their private
property to fulfill the purposes of the warm water fish enhancement
program. The director shall not impose restrictions on the use of
private property, or take private property, for the purpose of the warm
water fish enhancement program.
Sec. 23 RCW 77.55.121 and 2005 c 146 s 404 are each amended to
read as follows:
(1) Beginning in January 1998, the department ((and the department
of natural resources)) shall implement a habitat incentives program
based on the recommendations of federally recognized Indian tribes,
landowners, the regional fisheries enhancement groups, the timber,
fish, and wildlife cooperators, and other interested parties. The
program shall allow a private landowner to enter into an agreement with
the department((s)) to enhance habitat on the landowner's property for
food fish, game fish, or other wildlife species. In exchange, the
landowner shall receive state regulatory certainty with regard to
future applications for a permit or a forest practices permit on the
property covered by the agreement. The overall goal of the program is
to provide a mechanism that facilitates habitat development on private
property while avoiding an adverse state regulatory impact to the
landowner at some future date. A single agreement between the
department((s)) and a landowner may encompass up to one thousand acres.
A landowner may enter into multiple agreements with the
department((s)), provided that the total acreage covered by such
agreements with a single landowner does not exceed ten thousand acres.
The department((s are)) is not obligated to enter into an agreement
unless the department((s)) finds that the agreement is in the best
interest of protecting fish or wildlife species or their habitat.
(2) A habitat incentives agreement shall be in writing and shall
contain at least the following: (a) A description of the property
covered by the agreement; (b) an expiration date; (c) a description of
the condition of the property prior to the implementation of the
agreement; and (d) other information needed by the landowner and the
departments for future reference and decisions.
(3) As part of the agreement, the department may stipulate the
factors that will be considered when the department evaluates a
landowner's application for a permit on property covered by the
agreement. The department's identification of these evaluation factors
shall be in concurrence with ((the department of natural resources
and)) affected federally recognized Indian tribes. In general, future
decisions related to the issuance, conditioning, or denial of a permit
must be based on the conditions present on the landowner's property at
the time of the agreement, unless all parties agree otherwise.
(4) As part of the agreement, the department ((of natural
resources)) may stipulate the factors that will be considered when the
department ((of natural resources)) evaluates a landowner's application
for a forest practices permit under chapter 76.09 RCW on property
covered by the agreement. The department's ((of natural resources'))
identification of these evaluation factors shall be in concurrence with
((the department and)) affected federally recognized Indian tribes. In
general, future decisions related to the issuance, conditioning, or
denial of forest practices permits shall be based on the conditions
present on the landowner's property at the time of the agreement,
unless all parties agree otherwise.
(5) The agreement is binding on and may be used by only the
landowner who entered into the agreement with the department. The
agreement shall not be appurtenant with the land. However, if a new
landowner chooses to maintain the habitat enhancement efforts on the
property, the new landowner and the department and the department of
natural resources may jointly choose to retain the agreement on the
property.
(6) If the department ((and the department of natural resources))
receives multiple requests for agreements with private landowners under
the habitat incentives program, the department((s)) shall prioritize
these requests and shall enter into as many agreements as possible
within available budgetary resources.
Sec. 24 RCW 77.55.211 and 2005 c 146 s 406 are each amended to
read as follows:
The department((, the department of ecology, and the department of
natural resources)) shall ((jointly)) develop an informational brochure
that describes when permits and any other authorizations are required
for flood damage prevention and reduction projects, and recommend((s))
ways to best proceed through the various regulatory permitting
processes.
Sec. 25 RCW 77.55.131 and 2005 c 146 s 405 are each amended to
read as follows:
The department ((and the department of ecology)) will work
cooperatively with the United States army corps of engineers to develop
a memorandum of agreement outlining dike vegetation management
guidelines so that dike owners are eligible for coverage under P.L. 84-99, and state requirements established pursuant to RCW 77.55.021 are
met.
Sec. 26 RCW 77.65.510 and 2009 c 195 s 1 are each amended to read
as follows:
(1) The department must establish and administer a direct retail
endorsement to serve as a single license that permits a Washington
license holder or alternate operator to commercially harvest retail-eligible species and to clean, dress, and sell his or her catch
directly to consumers at retail, including over the internet. The
direct retail endorsement must be issued as an optional addition to all
holders of: (a) A commercial fishing license for retail-eligible
species that the department offers under this chapter; and (b) an
alternate operator license who are designated as an alternate operator
on a commercial fishing license for retail eligible species.
(2) The direct retail endorsement must be offered at the time of
application for the qualifying commercial fishing license. Individuals
in possession of a qualifying commercial fishing license issued under
this chapter, and alternate operators designated on such a license, may
add a direct retail endorsement to their current license at any time.
Individuals who do not have a commercial fishing license for retail-eligible species issued under this chapter, and who are not designated
as alternate operators on such a license, may not receive a direct
retail endorsement. The costs, conditions, responsibilities, and
privileges associated with the endorsed commercial fishing license is
not affected or altered in any way by the addition of a direct retail
endorsement. These costs include the base cost of the license and any
revenue and excise taxes.
(3) An individual need only add one direct retail endorsement to
his or her license portfolio. If a direct retail endorsement is
selected by an individual holding more than one commercial fishing
license issued under this chapter, a single direct retail endorsement
is considered to be added to all qualifying commercial fishing licenses
held by that individual, and is the only license required for the
individual to sell at retail any retail-eligible species permitted by
all of the underlying endorsed licenses. If a direct retail
endorsement is selected by an individual designated as an alternate
operator on more than one commercial license issued under this chapter,
a single direct retail endorsement is the only license required for the
individual to sell at retail any retail-eligible species permitted by
all of the underlying endorsed licenses on which the individual is
designated as an alternate operator. The direct retail endorsement
applies only to the Washington license holder or alternate operator
obtaining the endorsement.
(4) In addition to any fees charged for the endorsed licenses and
harvest documentation as required by this chapter or the rules of the
department, the department may set a reasonable annual fee not to
exceed the administrative costs to the department for a direct retail
endorsement.
(5) The holder of a direct retail endorsement is responsible for
documenting the commercial harvest of salmon and crab according to the
provisions of this chapter, the rules of the department for a wholesale
fish dealer, and the reporting requirements of the endorsed license.
Any retail-eligible species caught by the holder of a direct retail
endorsement must be documented on fish tickets.
(6) The direct retail endorsement must be displayed in a readily
visible manner by the seller wherever and whenever a sale to someone
other than a licensed wholesale dealer occurs. The commission may
require that the holder of a direct retail endorsement notify the
department up to eighteen hours before conducting an in-person sale of
retail-eligible species, except for in-person sales that have a
cumulative retail sales value of less than one hundred fifty dollars in
a twenty-four hour period that are sold directly from the vessel. For
sales occurring in a venue other than in person, such as over the
internet, through a catalog, or on the phone, the direct retail
endorsement number of the seller must be provided to the buyer both at
the time of sale and the time of delivery. All internet sales must be
conducted in accordance with federal laws and regulations.
(7) The direct retail endorsement is to be held by a natural person
and is not transferrable or assignable. If the endorsed license is
transferred, the direct retail endorsement immediately becomes void,
and the transferor is not eligible for a full or prorated reimbursement
of the annual fee paid for the direct retail endorsement. Upon
becoming void, the holder of a direct retail endorsement must surrender
the physical endorsement to the department.
(8) The holder of a direct retail endorsement must abide by the
provisions of Title 69 RCW as they apply to the processing and retail
sale of seafood. The department must distribute a pamphlet((, provided
by the department of agriculture,)) with the direct retail endorsement
generally describing the labeling requirements set forth in chapter
69.04 RCW as they apply to seafood.
(9) The holder of a qualifying commercial fishing license issued
under this chapter, or an alternate operator designated on such a
license, must either possess a direct retail endorsement or a wholesale
dealer license provided for in RCW 77.65.280 in order to lawfully sell
their catch or harvest in the state to anyone other than a licensed
wholesale dealer.
(10) The direct retail endorsement entitles the holder to sell a
retail-eligible species only at a temporary food service establishment
as that term is defined in RCW 69.06.045, or directly to a restaurant
or other similar food service business.
Sec. 27 RCW 77.70.210 and 2000 c 107 s 70 are each amended to
read as follows:
(1) A herring spawn on kelp fishery license is required to
commercially take herring eggs which have been deposited on vegetation
of any type.
(2) A herring spawn on kelp fishery license may be issued only to
a person who:
(a) Holds a herring fishery license issued under RCW 77.65.200 and
77.70.120; and
(b) Is the highest bidder in an auction conducted under subsection
(3) of this section.
(3) The department shall sell herring spawn on kelp commercial
fishery licenses at auction to the highest bidder. Bidders shall
identify their sources of kelp. ((Kelp harvested from state-owned
aquatic lands as defined in RCW 79.90.465 requires the written consent
of the department of natural resources.)) The department shall give
all holders of herring fishery licenses thirty days' notice of the
auction.
Sec. 28 RCW 77.105.070 and 1994 c 264 s 47 are each amended to
read as follows:
The department shall ((work with the department of ecology and
local government entities to)) streamline the siting process for new
enhancement projects. The department is encouraged to work with the
legislature to develop statutory changes that enable expeditious
processing and granting of permits for fish enhancement projects.
Sec. 29 RCW 79.13.620 and 2003 c 334 s 378 are each amended to
read as follows:
(1) It is the purpose of ((chapter 163, Laws of 1996)) this section
that all state agricultural lands, grazing lands, and grazeable
woodlands ((shall)) be managed in keeping with the statutory and
constitutional mandates under which each agency operates. ((Chapter
163, Laws of 1996 is consistent with section 1, chapter 4, Laws of 1993
sp. sess.))
(2) ((The ecosystem standards developed under chapter 4, Laws of
1993 sp. sess. for state-owned agricultural and grazing lands are
defined as desired ecological conditions. The standards are not
intended to prescribe practices. For this reason,)) Land managers are
encouraged to use an adaptive management approach in selecting and
implementing practices that work towards meeting the standards based on
the best available science and evaluation tools.
(3) ((For as long as the chapter 4, Laws of 1993 sp. sess.
ecosystem standards remain in effect, they)) Land shall be ((applied))
managed through a collaborative process that incorporates the following
principles:
(a) The land manager and lessee or permittee shall look at the land
together and make every effort to reach agreement on management and
resource objectives for the land under consideration;
(b) They will then discuss management options and make every effort
to reach agreement on which of the available options will be used to
achieve the agreed-upon objectives;
(c) No land manager or owner ever gives up his or her management
prerogative;
(d) Efforts will be made to make land management plans economically
feasible for landowners, managers, and lessees and to make the land
management plan compatible with the lessee's entire operation;
(e) Coordinated resource management planning is encouraged where
either multiple ownerships, or management practices, or both, are
involved;
(f) The department of fish and wildlife shall consider multiple
use, including grazing, on lands owned or managed by the department of
fish and wildlife where it is compatible with the management objectives
of the land; and
(g) The department shall allow multiple use on lands owned or
managed by the department where multiple use can be demonstrated to be
compatible with RCW 79.10.100, 79.10.110, and 79.10.120.
(4) The ecosystem standards are to be achieved by applying
appropriate land management practices on riparian lands and on the
uplands in order to reach the desired ecological conditions.
(((5) The legislature urges that state agencies that manage grazing
lands make planning and implementation of chapter 163, Laws of 1996,
using the coordinated resource management and planning process, a high
priority, especially where either multiple ownerships, or multiple use
resources objectives, or both, are involved. In all cases, the choice
of using the coordinated resource management planning process will be
a voluntary decision by all concerned parties including agencies,
private landowners, lessees, permittees, and other interests.))
Sec. 30 RCW 79.19.080 and 2003 c 334 s 531 are each amended to
read as follows:
Periodically, at intervals to be determined by the board, the
department shall identify trust lands which are expected to convert to
commercial, residential, or industrial uses within ten years. The
department shall adhere to existing local comprehensive plans, zoning
classifications, and duly adopted local policies when making this
identification and determining the fair market value of the property.
The department shall hold a public hearing on the proposal in the
county where the state land is located. At least fifteen days but not
more than thirty days before the hearing, the department shall publish
a public notice of reasonable size in display advertising form, setting
forth the date, time, and place of the hearing, at least once in one or
more daily newspapers of general circulation in the county and at least
once in one or more weekly newspapers circulated in the area where the
trust land is located. At the same time that the published notice is
given, the department shall give written notice of the hearings to the
((departments of fish and wildlife and general administration, to the
parks and recreation commission, and to the)) county, city, or town in
which the property is situated. The department shall disseminate a
news release pertaining to the hearing among printed and electronic
media in the area where the trust land is located. The public notice
and news release also shall identify trust lands in the area which are
expected to convert to commercial, residential, or industrial uses
within ten years.
A summary of the testimony presented at the hearings shall be
prepared for the board's consideration. The board shall designate
trust lands which are expected to convert to commercial, residential,
or industrial uses as urban land. Descriptions of lands designated by
the board shall be made available to the county and city or town in
which the land is situated and for public inspection and copying at the
department's administrative office in Olympia, Washington and at each
area office.
The hearing and notice requirements of this section apply to those
trust lands which have been identified by the department prior to July
1, 1984, as being expected to convert to commercial, residential, or
industrial uses within the next ten years, and which have not been sold
or exchanged prior to July 1, 1984.
Sec. 31 RCW 79.70.030 and 2003 c 334 s 549 are each amended to
read as follows:
In order to set aside, preserve, and protect natural areas within
the state, the department is authorized, in addition to any other
powers, to:
(1) Establish the criteria for selection, acquisition, management,
protection, and use of such natural areas, including:
(a) Limiting public access to natural area preserves consistent
with the purposes of this chapter. Where appropriate, and on a case-by-case basis, a buffer zone with an increased low level of public
access may be created around the environmentally sensitive areas;
(b) Developing a management plan for each designated natural area
preserve. The plan must identify the significant resources to be
conserved consistent with the purposes of this chapter and identify the
areas with potential for low-impact public and environmental
educational uses. The plan must specify the types of management
activities and public uses that are permitted, consistent with the
purposes of this chapter. The department must make the plans available
for review and comment by the public, and state, tribal, and local
agencies, prior to final approval;
(2) Cooperate or contract with any federal, state, or local
governmental agency, private organizations, or individuals in carrying
out the purpose of this chapter;
(3) Consistent with the plan, acquire by gift, devise, purchase,
grant, dedication, or means other than eminent domain, the fee or any
lesser right or interest in real property which shall be held and
managed as a natural area;
(4) Acquire by gift, devise, grant, or donation any personal
property to be used in the acquisition and/or management of natural
areas;
(5) Inventory existing public, state, and private lands in
cooperation with the council to assess possible natural areas to be
preserved within the state;
(6) Maintain a natural heritage program to provide assistance in
the selection and nomination of areas containing natural heritage
resources for registration or dedication. The program shall maintain
a classification of natural heritage resources, an inventory of their
locations, and a data bank for such information. ((The department
shall cooperate with the department of fish and wildlife in the
selection and nomination of areas from the data bank that relate to
critical wildlife habitats.)) Information from the data bank shall be
made available to public and private agencies and individuals for
environmental assessment and proprietary land management purposes.
Usage of the classification, inventory, or data bank of natural
heritage resources for any purpose inconsistent with the natural
heritage program is not authorized;
(7) Prepare a natural heritage plan which shall govern the natural
heritage program in the conduct of activities to create and manage a
system of natural areas that includes natural resources conservation
areas, and may include areas designated under the research natural area
program on federal lands in the state;
(a) The plan shall list the natural heritage resources to be
considered for registration and shall provide criteria for the
selection and approval of natural areas under this chapter;
(b) The department shall provide opportunities for input, comment,
and review to the public, other public agencies, and private groups
with special interests in natural heritage resources during preparation
of the plan;
(c) Upon approval by the council and adoption by the department,
the plan shall be updated and submitted biennially to the appropriate
committees of the legislature for their information and review. The
plan shall take effect ninety days after the adjournment of the
legislative session in which it is submitted unless the reviewing
committees suggest changes or reject the plan; and
(8) Maintain a state register of natural areas containing
significant natural heritage resources to be called the Washington
register of natural area preserves. Selection of natural areas for
registration shall be in accordance with criteria listed in the natural
heritage plan and accomplished through voluntary agreement between the
owner of the natural area and the department. No privately owned lands
may be proposed to the council for registration without prior notice to
the owner or registered without voluntary consent of the owner. No
state or local governmental agency may require such consent as a
condition of any permit or approval of or settlement of any civil or
criminal proceeding or to penalize any landowner in any way for failure
to give, or for withdrawal of, such consent.
(a) The department shall adopt rules as authorized by RCW 43.12.065
and 79.70.030(1) and chapter 34.05 RCW relating to voluntary natural
area registration.
(b) After approval by the council, the department may place sites
onto the register or remove sites from the register.
(c) The responsibility for management of registered natural area
preserves shall be with the preserve owner. A voluntary management
agreement may be developed between the department and the owners of the
sites on the register.
(d) Any public agency may register lands under provisions of this
chapter.
Sec. 32 RCW 79.71.120 and 1997 c 371 s 1 are each amended to read
as follows:
The property currently designated as the Elk river natural area
preserve is transferred from management under chapter 79.70 RCW as a
natural area preserve to management under chapter 79.71 RCW as a
natural resources conservation area. The legislature finds that
hunting is a suitable low-impact public use within the Elk river
natural resources conservation area. The department of natural
resources shall incorporate this legislative direction into the
management plan developed for the Elk river natural resources
conservation area. ((The department shall work with the department of
fish and wildlife to identify hunting opportunities compatible with the
area's conservation purposes.))
Sec. 33 RCW 79.105.500 and 2007 c 341 s 58 are each amended to
read as follows:
The legislature finds that the department provides, manages, and
monitors aquatic land dredged material disposal sites on state-owned
aquatic lands for materials dredged from rivers, harbors, and shipping
lanes. These disposal sites ((are)) should be approved through a
cooperative planning process by the department((s of natural resources
and ecology)), the United States army corps of engineers, and the
United States environmental protection agency ((in cooperation with the
Puget Sound partnership)). These disposal sites are essential to the
commerce and well-being of the citizens of the state of Washington.
Management and environmental monitoring of these sites are necessary to
protect environmental quality and to ((assure)) ensure appropriate use
of state-owned aquatic lands. The creation of an aquatic land dredged
material disposal site account is a reasonable means to enable and
facilitate proper management and environmental monitoring of these
disposal sites.
Sec. 34 RCW 79.125.710 and 2005 c 155 s 517 are each amended to
read as follows:
Whenever application is made to the department by any incorporated
city or town or metropolitan park district for the use of any state-owned tidelands or shorelands within the corporate limits of the city
or town or metropolitan park district for municipal park and/or
playground purposes, the department shall cause the application to be
entered in the records of its office, and shall then forward the
application to the governor, who shall appoint a committee of five
representative citizens of the city or town, in addition to the
commissioner ((and the director of ecology, both of)), whom shall be an
ex officio member((s)) of the committee, to investigate the lands and
determine whether they are suitable and needed for park or playground
purposes; and, if they so find, the commissioner shall certify to the
governor that the property shall be deeded, when in accordance with RCW
79.125.200 and 79.125.700, to the city or town or metropolitan park
district and the governor shall then execute a deed in the name of the
state of Washington, attested by the secretary of state, conveying the
use of the lands to the city or town or metropolitan park district for
park or playground purposes for so long as it shall continue to hold,
use, and maintain the lands for park or playground purposes.
Sec. 35 RCW 79.125.730 and 2005 c 155 s 519 are each amended to
read as follows:
The ((director of ecology)) commissioner, in addition to serving as
an ex officio member of the committee, is authorized and directed to
assist the city or town or metropolitan park district in the
development and decoration of any lands so conveyed and to furnish
trees, grass, flowers, and shrubs ((therefor)).
Sec. 36 RCW 79.135.130 and 2005 c 155 s 703 are each amended to
read as follows:
(1) The department, upon the receipt of an application for a lease
for the purpose of planting and cultivating oyster beds or for the
purpose of cultivating clams or other edible shellfish, shall ((notify
the director of fish and wildlife of the filing of the application
describing the tidelands or beds of navigable waters applied for. The
director of fish and wildlife shall)) cause an inspection of the lands
applied for ((to be made and shall make a full report to the department
of the director's findings as to whether it is necessary,)) in order to
protect existing natural oyster beds, and to secure adequate seeding of
the lands, to retain the lands described in the application for lease
or any part of the lands, and in the event the ((director)) department
deems it advisable to retain the lands or any part of the lands for the
protection of existing natural oyster beds or to guarantee the
continuance of an adequate seed stock for existing natural oyster beds,
the lands shall not be subject to lease. However, if the ((director))
department determines that the lands applied for or any part of the
lands may be leased, the ((director)) department shall ((so notify the
department and the director shall)) cause an examination of the lands
to be made to determine the presence, if any, of natural oysters,
clams, or other edible shellfish on the lands, and to fix the rental
value of the lands for use for oyster, clam, or other edible shellfish
cultivation. In the report ((to)), the department((, the director))
shall recommend a minimum rental for the lands and an estimation of the
value of the oysters, clams, or other edible shellfish, if any, then
present on the lands applied for. The lands approved by the
((director)) department for lease may then be leased to the applicant
for a period of not less than five years nor more than ten years at a
rental not less than the minimum ((rental)) recommended ((by the
director of fish and wildlife)) rent. In addition, before entering
upon possession of the land, the applicant shall pay the value of the
oysters, clams, or other edible shellfish, if any, then present on the
land as determined by the ((director)) department, plus the expense
incurred by the ((director)) department in investigating the quantity
of oysters, clams, or other edible shellfish, present on the land
applied for.
(2) When issuing new leases or reissuing existing leases the
department shall not permit the commercial harvest of subtidal
hardshell clams by means of hydraulic escalating when the upland within
five hundred feet of any lease tract is zoned for residential
development.
Sec. 37 RCW 79.135.140 and 2005 c 155 s 704 are each amended to
read as follows:
Before entering into possession of any leased tidelands or beds of
navigable waters, the applicant shall have the lands surveyed by a
registered land surveyor, and the applicant shall furnish to the
department ((and to the director of fish and wildlife,)) a map of the
leased premises signed and certified by the registered land surveyor.
The lessee shall also mark the boundaries of the leased premises by
piling monuments or other markers of a permanent nature ((as the
director of fish and wildlife may direct)).
Sec. 38 RCW 79.135.150 and 2005 c 155 s 705 are each amended to
read as follows:
The department may, upon the filing of an application for a renewal
lease, inspect the tidelands or beds of navigable waters, and if the
department deems it in the best interests of the state to re-lease the
lands, the department shall issue to the applicant a renewal lease for
a further period not exceeding thirty years and under the terms and
conditions as may be determined by the department. However, in the
case of an application for a renewal lease it shall not be necessary
for the lands to be inspected and reported upon by the ((director of
fish and wildlife)) department.
Sec. 39 RCW 79.135.320 and 2005 c 155 s 712 are each amended to
read as follows:
(1) ((In the event that the fish and wildlife commission approves
the vacation of the whole or any part of a reserve,)) The department
may vacate and offer for lease the parts or all of the reserve as it
deems to be for the best interest of the state, and all moneys received
for the lease of the lands shall be paid to the department.
(2) Notwithstanding RCW 77.60.020, subsection (1) of this section,
or any other provision of state law, the state oyster reserves in Eld
Inlet, Hammersley Inlet, or Totten Inlet, situated in Mason or Thurston
counties shall permanently be designated as state oyster reserve lands.
Sec. 40 RCW 79.135.410 and 2005 c 155 s 715 are each amended to
read as follows:
(1) The maximum daily wet weight harvest or possession of seaweed
for personal use from all state-owned aquatic lands and all privately
owned tidelands is ten pounds per person. The department ((in
cooperation with the department of fish and wildlife)) may establish
seaweed harvest limits of less than ten pounds for conservation
purposes. This section shall in no way affect the ability of any state
agency to prevent harvest of any species of marine aquatic plant from
lands under its control, ownership, or management.
(2) Except as provided under subsection (3) of this section,
commercial harvesting of seaweed from state-owned aquatic lands, and
all privately owned tidelands is prohibited. This subsection shall in
no way affect commercial seaweed aquaculture.
(3) Upon ((mutual)) approval by the department ((and the department
of fish and wildlife)), seaweed species of the genus Macrocystis may be
commercially harvested for use in the herring spawn-on-kelp fishery.
(4) Importation of seaweed species of the genus Macrocystis into
Washington state for the herring spawn-on-kelp fishery is subject to
the fish and shellfish disease control policies ((of the department of
fish and wildlife)). Macrocystis shall not be imported from areas with
fish or shellfish diseases associated with organisms that are likely to
be transported with Macrocystis. The department shall incorporate this
policy on Macrocystis importation into its overall fish and shellfish
disease control policies.
Sec. 41 RCW 79A.05.255 and 2000 c 48 s 1 and 2000 c 11 s 35 are
each reenacted and amended to read as follows:
(1) There is created a winter recreation advisory committee to
advise the parks and recreation commission in the administration of
this chapter and to assist and advise the commission in the development
of winter recreation facilities and programs.
(2) The committee shall consist of:
(a) Six representatives of the nonsnowmobiling winter recreation
public appointed by the commission, including a resident of each of the
six geographical areas of this state where nonsnowmobiling winter
recreation activity occurs, as defined by the commission.
(b) Three representatives of the snowmobiling public appointed by
the commission.
(c) One ((representative of the department of natural resources,
one representative of the department of fish and wildlife, and one))
representative of ((the Washington state association of counties, each
of whom shall be)) a statewide private association generally
representing the interests of county legislative bodies and executives
appointed by the director ((of the particular department or
association)).
(3) The terms of the members appointed under subsection (2)(a) and
(b) of this section shall begin on October 1st of the year of
appointment and shall be for three years or until a successor is
appointed, except in the case of appointments to fill vacancies for the
remainder of the unexpired term: PROVIDED, That the first of these
members shall be appointed for terms as follows: Three members shall
be appointed for one year, three members shall be appointed for two
years, and three members shall be appointed for three years.
(4) Members of the committee shall be reimbursed from the winter
recreational program account created by RCW 79A.05.235 for travel
expenses as provided in RCW 43.03.050 and 43.03.060.
(5) The committee shall meet at times and places it determines not
less than twice each year and additionally as required by the committee
chair or by majority vote of the committee. The chair of the committee
shall be chosen under procedures adopted by the committee. The
committee shall adopt any other procedures necessary to govern its
proceedings.
(6) The director of parks and recreation or the director's designee
shall serve as secretary to the committee and shall be a nonvoting
member.
Sec. 42 RCW 79A.05.351 and 2007 c 176 s 2 are each amended to
read as follows:
(1) The outdoor education and recreation grant program is hereby
created, subject to the availability of funds in the outdoor education
and recreation account. The commission shall establish and implement
the program by rule to provide opportunities for public agencies,
private nonprofit organizations, formal school programs, nonformal
after-school programs, and community-based programs to receive grants
from the account. Programs that provide outdoor education
opportunities to schools shall be fully aligned with the state's
essential academic learning requirements.
(2) The program shall be phased in beginning with the schools and
students with the greatest needs in suburban, rural, and urban areas of
the state. The program shall focus on students who qualify for free
and reduced-price lunch, who are most likely to fail academically, or
who have the greatest potential to drop out of school.
(3) The director shall set priorities and develop criteria for the
awarding of grants to outdoor environmental, ecological, agricultural,
or other natural resource-based education and recreation programs
considering at least the following:
(a) Programs that contribute to the reduction of academic failure
and dropout rates;
(b) Programs that make use of research-based, effective
environmental, ecological, agricultural, or other natural resource-based education curriculum;
(c) Programs that contribute to healthy life styles through outdoor
recreation and sound nutrition;
(d) Various Washington state parks as venues and use of the
commission's personnel as a resource;
(e) Programs that maximize the number of participants that can be
served;
(f) Programs that will commit matching and in-kind resources;
(g) Programs that create partnerships with public and private
entities;
(h) Programs that provide students with opportunities to directly
experience and understand nature and the natural world; and
(i) Programs that include ongoing program evaluation, assessment,
and reporting of their effectiveness.
(4) The director shall create an advisory committee to assist and
advise the commission in the development and administration of the
outdoor education and recreation program. The director should solicit
representation on the committee from ((the office of the superintendent
of public instruction, the department of fish and wildlife,)) the
business community, outdoor organizations with an interest in
education, and any others the commission deems sufficient to ensure a
cross section of stakeholders. When the director creates such an
advisory committee, its members shall be reimbursed from the outdoor
education and recreation program account for travel expenses as
provided in RCW 43.03.050 and 43.03.060.
(5) The outdoor education and recreation program account is created
in the custody of the state treasurer. Funds deposited in the outdoor
education and recreation program account shall be transferred only to
the commission to be used solely for the commission's outdoor education
and recreation program purposes identified in this section including
the administration of the program. The director may accept gifts,
grants, donations, or moneys from any source for deposit in the outdoor
education and recreation program account. Any public agency in this
state may develop and implement outdoor education and recreation
programs. The director may make grants to public agencies and contract
with any public or private agency or person to develop and implement
outdoor education and recreation programs. The outdoor education and
recreation program account is subject to allotment procedures under
chapter 43.88 RCW, but an appropriation is not required for
expenditures.
Sec. 43 RCW 79A.05.360 and 1999 c 249 s 1301 are each amended to
read as follows:
The commission may establish a system of underwater parks to
provide for diverse recreational diving opportunities and to conserve
and protect unique marine resources of the state of Washington. In
establishing and maintaining an underwater park system, the commission
may:
(1) Plan, construct, and maintain underwater parks;
(2) Acquire property and enter management agreements with other
units of state government for the management of lands, tidelands, and
bedlands as underwater parks;
(3) Construct artificial reefs and other underwater features to
enhance marine life and recreational uses of an underwater park;
(4) Accept gifts and donations for the benefit of underwater parks;
(5) Facilitate private efforts to construct artificial reefs and
underwater parks;
(6) Work with the federal government((,)) and local governments
((and other appropriate agencies of state government, including but not
limited to: The department of natural resources, the department of
fish and wildlife and the natural heritage council)) to carry out the
purposes of this chapter; and
(7) Contract with other state agencies or local governments for the
management of an underwater park unit.
Sec. 44 RCW 79A.60.520 and 2007 c 341 s 56 are each amended to
read as follows:
The commission((, in consultation with the departments of ecology,
fish and wildlife, natural resources, social and health services, and
the Puget Sound partnership)) shall conduct a literature search and
analyze pertinent studies to identify areas which are polluted or
environmentally sensitive within the state's waters. Based on this
review the commission shall designate appropriate areas as polluted or
environmentally sensitive, for the purposes of chapter 393, Laws of
1989 only.
Sec. 45 RCW 79A.60.550 and 1993 c 244 s 34 are each amended to
read as follows:
The ((department of ecology, in consultation with the))
commission((,)) shall, for initiation of the statewide program only,
develop criteria by rule for the design, installation, and operation of
sewage pumpout and dump units, taking into consideration the ease of
access to the unit by the boating public. ((The department of ecology
may adopt rules to administer the provisions of this section.))
Sec. 46 RCW 79A.60.620 and 2000 c 11 s 114 are each amended to
read as follows:
(1) The Washington sea grant program((, in consultation with the
department of ecology,)) shall develop and conduct a voluntary spill
prevention education program that targets small spills from commercial
fishing vessels, ferries, cruise ships, ports, and marinas. Washington
sea grant shall coordinate the spill prevention education program with
recreational boater education performed by the state parks and
recreation commission.
(2) The spill prevention education program shall illustrate ways to
reduce oil contamination of bilge water, accidental spills of hydraulic
fluid and other hazardous substances during routine maintenance, and
reduce spillage during refueling. The program shall illustrate proper
disposal of oil and hazardous substances and promote strategies to meet
shoreside oil and hazardous substance handling, and disposal needs of
the targeted groups. The program shall include a series of training
workshops and the development of educational materials.
Sec. 47 RCW 79A.05.285 and 1999 c 249 s 907 are each amended to
read as follows:
The commission is authorized to evaluate and acquire land under RCW
((79.01.612 in cooperation with the department of natural resources))
79.10.030.
Sec. 48 RCW 79A.30.050 and 1995 c 200 s 6 are each amended to
read as follows:
(((1) If the authority and state agencies find it mutually
beneficial to do so, they are authorized to collaborate and cooperate
on projects of shared interest. Agencies authorized to collaborate
with the authority include but are not limited to: The commission for
activities and projects related to public recreation; the department of
agriculture for projects related to the equine agricultural industry;
the department of community, trade, and economic development with
respect to community and economic development and tourism issues
associated with development of the state horse park; Washington State
University with respect to opportunities for animal research,
education, and extension; the department of ecology with respect to
opportunities for making the state horse park's waste treatment
facilities a demonstration model for the handling of waste to protect
water quality; and with local community colleges with respect to
programs related to horses, economic development, business, and
tourism.)) The authority shall cooperate with 4-H clubs, pony clubs,
youth groups, and local park departments to provide youth recreational
activities. The authority shall also provide for preferential use of
an area of the horse park facility for youth and ((
(2)the disabled))
individuals with disabilities at nominal cost.
Sec. 49 RCW 79A.50.090 and 1969 ex.s. c 247 s 2 are each amended
to read as follows:
The department of natural resources shall ((not rescind the
withdrawal of)) have reasonable access across all public land in any
existing and future state park ((nor sell any timber or other valuable
material therefrom or grant any right-of-way or easement thereon,
except as provided in the withdrawal order or for off-site drilling,
without the concurrence of the state parks and recreation commission.)) in order to reach other public lands administered
by the department of natural resources.
The department of natural resources shall have reasonable access
across such lands
Sec. 50 RCW 79A.50.100 and 1995 c 399 s 209 are each amended to
read as follows:
(1) A public hearing may be held prior to any withdrawal of state
trust lands and shall be held prior to any revocation of withdrawal or
modification of withdrawal of state trust lands used for recreational
purposes by the department of natural resources ((or by other state
agencies)).
(2) The department of natural resources shall cause notice of the
withdrawal, revocation of withdrawal or modification of withdrawal of
state trust lands as described in subsection (1) of this section to be
published by advertisement once a week for four weeks prior to the
public hearing in at least one newspaper published and of general
circulation in the county or counties in which the state trust lands
are situated, and by causing a copy of said notice to be posted in a
conspicuous place in the department's Olympia office, in the district
office in which the land is situated, and in the office of the county
auditor in the county where the land is situated thirty days prior to
the public hearing. The notice shall specify the time and place of the
public hearing and shall describe with particularity each parcel of
state trust lands involved in said hearing.
(3) The board of natural resources shall administer the hearing
according to its prescribed rules and regulations.
(4) The board of natural resources shall determine the most
beneficial use or combination of uses of the state trust lands. ((Its
decision will be conclusive as to the matter: PROVIDED, HOWEVER, That
said decisions as to uses shall conform to applicable state plans and
policy guidelines adopted by the department of community, trade, and
economic development.))
Sec. 51 RCW 79A.15.110 and 2007 c 241 s 36 are each amended to
read as follows:
((A state)) The recreation and conservation office or a local
agency shall review the proposed project application with the county or
city with jurisdiction over the project area prior to applying for
funds for the acquisition of property under this chapter. The
appropriate county or city legislative authority may, at its
discretion, submit a letter to the board identifying the authority's
position with regard to the acquisition project. The board shall make
the letters received under this section available to the governor and
the legislature when the prioritized project list is submitted under
RCW 79A.15.120, 79A.15.060, and 79A.15.070.
Sec. 52 RCW 78.44.280 and 1999 c 252 s 2 are each amended to read
as follows:
Surface disturbances caused by an underground metals mining and
milling operation are subject to the requirements of this chapter if
the operation is proposed after June 30, 1999. An operation is
proposed when an agency is presented with an application for an
operation or expansion of an existing operation having a probable
significant adverse environmental impact under chapter 43.21C RCW. The
department ((of ecology)) shall retain authority for reclamation of
surface disturbances caused by an underground operation operating at
any time prior to June 30, 1999((, unless the operator requests that
authority for reclamation of surface disturbances caused by such
operation be transferred to the department under the requirements of
this chapter)).
Sec. 53 RCW 78.52.125 and 1994 sp.s. c 9 s 822 are each amended
to read as follows:
Any person desiring or proposing to drill any well in search of oil
or gas, when such drilling would be conducted through or under any
surface waters of the state, shall prepare and submit an environmental
impact statement upon such form as the department of ((ecology))
natural resources shall prescribe at least one hundred and twenty days
prior to commencing the drilling of any such well. Within ninety days
after receipt of such environmental statement the department of
((ecology)) natural resources shall ((prepare and submit to the
department of natural resources a report examining)) examine the
potential environmental impact of the proposed well and recommendations
for department action thereon. If after consideration of the report
the department of natural resources determines that the proposed well
is likely to have a substantial environmental impact the drilling
permit for such well may be denied.
The department of natural resources shall require sufficient
safeguards to minimize the hazards of pollution of all surface and
ground waters of the state. If safeguards acceptable to the department
of natural resources cannot be provided the drilling permit shall be
denied.
Sec. 54 RCW 78.56.040 and 1994 c 232 s 4 are each amended to read
as follows:
The department of ((ecology)) natural resources shall require each
applicant submitting a checklist pursuant to chapter 43.21C RCW for a
metals mining and milling operation to disclose the ownership and each
controlling interest in the proposed operation. The applicant shall
also disclose all other mining operations within the United States
which the applicant operates or in which the applicant has an ownership
or controlling interest. In addition, the applicant shall disclose and
may enumerate and describe the circumstances of: (1) Any past or
present bankruptcies involving the ownerships and their subsidiaries,
(2) any abandonment of sites regulated by the model toxics control act,
chapter 70.105D RCW, or other similar state remedial cleanup programs,
or the federal comprehensive environmental response, compensation, and
liability act, 42 U.S.C. Sec. 9601 et seq., as amended, (3) any
penalties in excess of ten thousand dollars assessed for violations of
the provisions of 33 U.S.C. Sec. 1251 et seq. or 42 U.S.C. Sec. 7401 et
seq., and (4) any previous forfeitures of financial assurance due to
noncompliance with reclamation or remediation requirements. This
information shall be available for public inspection and copying at the
department of ((ecology)) natural resources. Ownership or control of
less than ten percent of the stock of a corporation shall not by itself
constitute ownership or a controlling interest under this section.
Sec. 55 RCW 78.56.050 and 1994 c 232 s 5 are each amended to read
as follows:
(1) An environmental impact statement must be prepared for any
proposed metals mining and milling operation. The department of
((ecology)) natural resources shall be the lead agency in coordinating
the environmental review process under chapter 43.21C RCW and in
preparing the environmental impact statement, except for uranium and
thorium operations regulated under Title 70 RCW.
(2) As part of the environmental review of metals mining and
milling operations regulated under this chapter, the applicant shall
provide baseline data adequate to document the premining conditions at
the proposed site of the metals mining and milling operation. The
baseline data shall contain information on the elements of the natural
environment identified in rules adopted pursuant to chapter 43.21C RCW.
(3) The department of ((ecology, after consultation with the
department of fish and wildlife,)) natural resources shall incorporate
measures to mitigate significant probable adverse impacts to fish and
wildlife as part of the ((department of ecology's)) department's permit
requirements for the proposed operation.
(4) In conducting the environmental review and preparing the
environmental impact statement, the department of ((ecology)) natural
resources shall cooperate with all affected local governments to the
fullest extent practicable.
Sec. 56 RCW 78.56.060 and 1994 c 232 s 6 are each amended to read
as follows:
The department of ((ecology)) natural resources will appoint a
metals mining coordinator. The coordinator will maintain current
information on the status of any metals mining and milling operation
regulated under this chapter from the preparation of the environmental
impact statement through the permitting, construction, operation, and
reclamation phases of the project or until the proposal is no longer
active. The coordinator shall also maintain current information on
postclosure activities. The coordinator will act as a contact person
for the applicant, the operator, and interested members of the public.
The coordinator may also assist agencies with coordination of their
inspection and monitoring responsibilities.
Sec. 57 RCW 78.56.080 and 1997 c 170 s 1 are each amended to read
as follows:
(1) The metals mining account is created in the state treasury.
Expenditures from this account are subject to appropriation.
Expenditures from this account may only be used for: (a) The
additional inspections of metals mining and milling operations required
by RCW 78.56.070 and (b) the metals mining coordinator established in
RCW 78.56.060.
(2)(((a))) As part of its normal budget development process and in
consultation with the metals mining industry, the department of
((ecology)) natural resources shall estimate the costs required ((for
the department)) to meet its obligations for the additional inspections
of metals mining and milling operations required by chapter 232, Laws
of 1994. The department shall also estimate the cost of employing the
metals mining coordinator established in RCW 78.56.060.
(((b) As part of its normal budget development process and in
consultation with the metals mining industry, the department of natural
resources shall estimate the costs required for the department to meet
its obligations for the additional inspections of metals mining and
milling operations required by chapter 232, Laws of 1994.))
(3) Based on the cost estimates generated by the department of
((ecology and the department of)) natural resources, the department
((of ecology)) shall establish the amount of a fee to be paid by each
active metals mining and milling operation regulated under this
chapter. The fee shall be established at a level to fully recover the
direct and indirect costs of the ((agency)) department's
responsibilities identified in subsection (2) of this section. The
amount of the fee for each operation shall be proportional to the
number of visits required per site. Each applicant for a metals mining
and milling operation shall also be assessed the fee based on the same
criterion. The department ((of ecology)) may adjust the fees
established in this subsection if unanticipated activity in the
industry increases or decreases the amount of funding necessary to meet
((agencies')) the agency's inspection responsibilities.
(4) The department of ((ecology)) natural resources shall collect
the fees established in subsection (3) of this section. All moneys
from these fees shall be deposited into the metals mining account.
Sec. 58 RCW 78.56.090 and 1994 c 232 s 9 are each amended to read
as follows:
(1) In the processing of an application for an initial waste
discharge permit for a tailings facility pursuant to the requirements
of chapter 90.48 RCW, the department of ((ecology)) natural resources
shall consider site-specific criteria in determining a preferred
location of tailings facilities of metals mining and milling operations
and incorporate the requirements of all known available and reasonable
methods in order to maintain the highest possible standards to insure
the purity of all waters of the state in accordance with the public
policy identified by RCW 90.48.010.
In implementing the siting criteria, the department shall take into
account the objectives of the proponent's application relating to
mining and milling operations. These objectives shall consist of, but
not be limited to (a) operational feasibility, (b) compatibility with
optimum tailings placement methods, (c) adequate volume capacity, (d)
availability of construction materials, and (e) an optimized embankment
volume.
(2) To meet the mandate of subsection (1) of this section, siting
of tailings facilities shall be accomplished through a two-stage
process that consists of a primary alternatives screening phase, and a
secondary technical site investigation phase.
(3) The primary screening phase will consist of, but not be limited
to, siting criteria based on considerations as to location as follows:
(a) Proximity to the one hundred year floodplain, as indicated in
the most recent federal emergency management agency maps;
(b) Proximity to surface and ground water;
(c) Topographic setting;
(d) Identifiable adverse geologic conditions, such as landslides
and active faults; and
(e) Visibility impacts of the public generally and residents more
particularly.
(4) The department of ((ecology)) natural resources, through the
primary screening process, shall reduce the available tailings facility
sites to one or more feasible locations whereupon a technical site
investigation phase shall be conducted by the department for the
purpose of verifying the adequacy of the remaining potential sites.
The technical site investigations phase shall consist of, but not be
limited to, the following:
(a) Soil characteristics;
(b) Hydrologic characteristics;
(c) A local and structural geology evaluation, including seismic
conditions and related geotechnical investigations;
(d) A surface water control analysis; and
(e) A slope stability analysis.
(5) Upon completion of the two phase evaluation process set forth
in this section, the department of ((ecology)) natural resources shall
issue a site selection report on the preferred location. This report
shall address the above criteria as well as analyze the feasibility of
reclamation and stabilization of the tailings facility. The siting
report may recommend mitigation or engineering factors to address
siting concerns. The report shall be developed in conjunction with the
preparation of and contained in an environmental impact statement
prepared pursuant to chapter 43.21C RCW. The report may be utilized by
the department of ecology for the purpose of providing information
related to the suitability of the site and for ruling on an application
for a waste discharge permit.
(6) The department of ((ecology)) natural resources may, at its
discretion, require the applicant to provide the information required
in either phase one or phase two as described in subsections (3) and
(4) of this section.
Sec. 59 RCW 78.56.100 and 1994 c 232 s 10 are each amended to
read as follows:
(1) In order to receive a waste discharge permit from the
department of ((ecology)) natural resources pursuant to the
requirements of chapter 90.48 RCW or in order to operate a metals
mining and milling tailing facility, an applicant proposing a metals
mining and milling operation regulated under this chapter must meet the
following additional requirements:
(a) Any tailings facility shall be designed and operated to prevent
the release of pollution and must meet the following standards:
(i) Operators shall apply all known available and reasonable
technology to limit the concentration of potentially toxic materials in
the tailings facility to assure the protection of wildlife and human
health;
(ii) The tailings facility shall have a containment system that
includes an engineered liner system, leak detection and leak collection
elements, and a seepage collection impoundment to assure that a leak of
any regulated substance under chapter 90.48 RCW will be detected before
escaping from the containment system. The design and management of the
facility must ensure that any leaks from the tailings facility are
detected in a manner which allows for remediation pursuant to chapter
90.48 RCW. The applicant shall prepare a detailed engineering report
setting forth the facility design and construction. The applicant
shall submit the report to the department of ((ecology)) natural
resources for its review and approval of a design as determined by the
department. Natural conditions, such as depth to groundwater or net
rainfall, shall be taken into account in the facility design, but not
in lieu of the protection required by the engineered liner system;
(iii) The toxicity of mine or mill tailings and the potential for
long-term release of regulated substances from mine or mill tailings
shall be reduced to the greatest extent practicable through
stabilization, removal, or reuse of the substances; and
(iv) The closure of the tailings facility shall provide for
isolation or containment of potentially toxic materials and shall be
designed to prevent future release of regulated substances contained in
the impoundment;
(b) The applicant must develop a waste rock management plan
approved by the department of ((ecology and the department of)) natural
resources which emphasizes pollution prevention. At a minimum, the
plan must contain the following elements:
(i) An accurate identification of the acid generating properties of
the waste rock;
(ii) A strategy for encapsulating potentially toxic material from
the environment, when appropriate, in order to prevent the release of
heavy metals and acidic drainage; and
(iii) A plan for reclaiming and closing waste rock sites which
minimizes infiltration of precipitation and runoff into the waste rock
and which is designed to prevent future releases of regulated
substances contained within the waste rock;
(c) If an interested citizen or citizen group so requests of the
department of ((ecology)) natural resources, the metals mining and
milling operator or applicant shall work with the department ((of
ecology)) and the interested party to make arrangements for citizen
observation and verification in the taking of required water samples.
While it is the intent of this subsection to provide for citizen
observation and verification of water sampling activities, it is not
the intent of this subsection to require additional water sampling and
analysis on the part of the mining and milling operation or the
department. The citizen observation and verification program shall be
incorporated into the applicant's, operator's, or department's normal
sampling regimen and shall occur at least once every six months. There
is no duty of care on the part of the state or its employees to any
person who participates in the citizen observation and verification of
water sampling under chapter 232, Laws of 1994 and the state and its
employees shall be immune from any civil lawsuit based on any injuries
to or claims made by any person as a result of that person's
participation in such observation and verification of water sampling
activities. The metals mining and milling operator or applicant shall
not be liable for any injuries to or claims made by any person which
result from that person coming onto the property of the metals mining
and milling operator or applicant as an observer pursuant to chapter
232, Laws of 1994. The results from these and all other relevant water
sampling activities shall be kept on file with the relevant county and
shall be available for public inspection during normal working hours;
and
(d) An operator or applicant for a metals mining and milling
operation must complete a voluntary reduction plan in accordance with
RCW 70.95C.200.
(2) Only those tailings facilities constructed after April 1, 1994,
must meet the requirement established in subsection (1)(a) of this
section. Only those waste rock holdings constructed after April 1,
1994, must meet the requirement established in subsection (1)(b) of
this section.
Sec. 60 RCW 78.56.110 and 1995 c 223 s 1 are each amended to read
as follows:
(1) The department of ((ecology)) natural resources shall not issue
necessary permits to an applicant for a metals mining and milling
operation until the applicant has deposited with the department ((of
ecology)) a performance security which is acceptable to the department
((of ecology)) based on the requirements of subsection (2) of this
section. This performance security may be:
(a) Bank letters of credit;
(b) A cash deposit;
(c) Negotiable securities;
(d) An assignment of a savings account;
(e) A savings certificate in a Washington bank; or
(f) A corporate surety bond executed in favor of the department of
ecology by a corporation authorized to do business in the state of
Washington under Title 48 RCW.
The department of ((ecology)) natural resources may, for any
reason, refuse any performance security not deemed adequate.
(2) The performance security shall be conditioned on the faithful
performance of the applicant or operator in meeting the following
obligations:
(a) Compliance with the environmental protection laws of the state
of Washington administered by the department of ((ecology)) natural
resources, or permit conditions administered by the department ((of
ecology)), associated with the construction, operation, and closure
pertaining to metals mining and milling operations, and with the
related environmental protection ordinances and permit conditions
established by local government when requested by local government;
(b) Reclamation of metals mining and milling operations that do not
meet the threshold of surface mining as defined by RCW 78.44.031(17);
(c) Postclosure environmental monitoring as determined by the
department of ((ecology)) natural resources; and
(d) Provision of sufficient funding as determined by the department
of ((ecology)) natural resources for cleanup of potential problems
revealed during or after closure.
(3) The department of ((ecology)) natural resources may, if it
deems appropriate, adopt rules for determining the amount of the
performance security, requirements for the performance security,
requirements for the issuer of the performance security, and any other
requirements necessary for the implementation of this section.
(4) The department of ((ecology)) natural resources may increase or
decrease the amount of the performance security at any time to
compensate for any alteration in the operation that affects meeting the
obligations in subsection (2) of this section. At a minimum, the
department shall review the adequacy of the performance security every
two years.
(5) Liability under the performance security shall be maintained
until the obligations in subsection (2) of this section are met to the
satisfaction of the department of ((ecology)) natural resources.
Liability under the performance security may be released only upon
written notification by the department ((of ecology)).
(6) Any interest or appreciation on the performance security shall
be held by the department of ((ecology)) natural resources until the
obligations in subsection (2) of this section have been met to the
satisfaction of the department ((of ecology)). At such time, the
interest shall be remitted to the applicant or operator. However, if
the applicant or operator fails to comply with the obligations of
subsection (2) of this section, the interest or appreciation may be
used by the department ((of ecology)) to comply with the obligations.
(7) ((Only one agency may require a performance security to satisfy
the deposit requirements of RCW 78.44.087, and only one agency may
require a performance security to satisfy the deposit requirements of
this section. However,)) A single performance security, when
acceptable to ((both the department of ecology and)) the department of
natural resources, may be utilized ((by both agencies)) to satisfy the
requirements of this section and RCW 78.44.087.
Sec. 61 RCW 78.56.120 and 1995 c 223 s 2 are each amended to read
as follows:
The department of ((ecology)) natural resources may, with staff,
equipment, and material under its control, or by contract with others,
remediate or mitigate any impact of a metals mining and milling
operation when it finds that the operator or permit holder has failed
to comply with relevant statutes, rules, or permits, and the operator
or permit holder has failed to take adequate or timely action to
rectify these impacts.
If the department intends to remediate or mitigate such impacts,
the department shall issue an order to submit performance security
requiring the permit holder or surety to submit to the department the
amount of moneys posted pursuant to RCW 78.56.110. If the amount
specified in the order to submit performance security is not paid
within twenty days after issuance of the notice, the attorney general
upon request of the department shall bring an action on behalf of the
state in a superior court to recover the amount specified and
associated legal fees.
The department may proceed at any time after issuing the order to
submit performance security to remediate or mitigate adverse impacts.
The department shall keep a record of all expenses incurred in
carrying out any remediation or mitigation activities authorized under
this section, including:
(1) Remediation or mitigation;
(2) A reasonable charge for the services performed by the state's
personnel and the state's equipment and materials utilized; and
(3) Administrative and legal expenses related to remediation or
mitigation.
The department shall refund to the surety or permit holder all
amounts received in excess of the amount of expenses incurred. If the
amount received is less than the expenses incurred, the attorney
general, upon request of the department of ((ecology)) natural
resources, may bring an action against the permit holder on behalf of
the state in the superior court to recover the remaining costs listed
in this section.
Sec. 62 RCW 78.56.160 and 1998 c 245 s 161 are each amended to
read as follows:
(1) Until June 30, 1996, there shall be a moratorium on metals
mining and milling operations using the heap leach extraction process.
The department of natural resources ((and the department of ecology))
shall ((jointly)) review the existing laws and regulations pertaining
to the heap leach extraction process for their adequacy in safeguarding
the environment.
(2) Metals mining using the process of in situ extraction is
permanently prohibited in the state of Washington.
Sec. 63 RCW 78.60.070 and 2007 c 338 s 1 are each amended to read
as follows:
(1) Any person proposing to drill a well or redrill an abandoned
well for geothermal resources shall file with the department a written
application for a permit to commence such drilling or redrilling on a
form prescribed by the department accompanied by a permit fee of two
hundred dollars. ((The department shall forward a duplicate copy to
the department of ecology within ten days of filing.))
(2) Upon receipt of a proper application relating to drilling or
redrilling the department shall set a date, time, and place for a
public hearing on the application, which hearing shall be in the county
in which the drilling or redrilling is proposed to be made, and shall
instruct the applicant to publish notices of such application and
hearing by such means and within such time as the department shall
prescribe. The department shall require that the notice so prescribed
shall be published twice in a newspaper of general circulation within
the county in which the drilling or redrilling is proposed to be made
and in such other appropriate information media as the department may
direct.
(3) Any person proposing to drill a core hole for the purpose of
gathering geothermal data, including but not restricted to heat flow,
temperature gradients, and rock conductivity, shall be required to
obtain a single permit for each core hole according to subsection (1)
of this section, including a permit fee for each core hole, but no
notice need be published, and no hearing need be held. Such core holes
that penetrate more than seven hundred and fifty feet into bedrock
shall be deemed geothermal test wells and subject to the payment of a
permit fee and to the requirement in subsection (2) of this section for
public notices and hearing. In the event geothermal energy is
discovered in a core hole, the hole shall be deemed a geothermal well
and subject to the permit fee, notices, and hearing. Such core holes
as described by this subsection are subject to all other provisions of
this chapter, including a bond or other security as specified in RCW
78.60.130.
(4) All moneys paid to the department under this section shall be
deposited with the state treasurer for credit to the general fund.
Sec. 64 RCW 78.60.080 and 1974 ex.s. c 43 s 8 are each amended to
read as follows:
A permit shall be granted only if the department is satisfied that
the area is suitable for the activities applied for; that the applicant
will be able to comply with the provisions of this chapter and the
rules and regulations enacted hereunder; and that a permit would be in
the best interests of the state.
The department shall not allow operation of a well under permit if
it finds that the operation of any well will unreasonably decrease
groundwater available for prior water rights in any aquifer or other
groundwater source for water for beneficial uses, unless such affected
water rights are acquired by condemnation, purchase or other means.
The department shall have the authority to condition the permit as
it deems necessary to carry out the provisions of this chapter,
including but not limited to conditions to reduce any environmental
impact.
((The department shall forward a copy of the permit to the
department of ecology within five days of issuance.))
Sec. 65 RCW 78.60.100 and 2007 c 338 s 2 are each amended to read
as follows:
Any well or core hole drilled under authority of this chapter from
which:
(1) It is not technologically practical to derive the energy to
produce electricity commercially, or the owner or operator has no
intention of deriving energy to produce electricity commercially, and
(2) Usable minerals cannot be derived, or the owner or operator has
no intention of deriving usable minerals, shall be plugged and
abandoned as provided in this chapter or, upon the owner's or
operator's written application to the department ((of natural resources
and with the concurrence and approval of the department of ecology)),
jurisdiction over the well may be transferred to the department ((of
ecology)) and, in such case, the well shall no longer be subject to the
provisions of this chapter but shall be subject to any applicable laws
and rules relating to wells drilled for appropriation and use of
groundwaters. If an application is made to transfer jurisdiction, a
copy of all logs, records, histories, and descriptions shall be
provided to the department ((of ecology)) by the applicant.
Sec. 66 RCW 90.03.247 and 2003 c 39 s 48 are each amended to read
as follows:
Whenever an application for a permit to make beneficial use of
public waters is approved relating to a stream or other water body for
which minimum flows or levels have been adopted and are in effect at
the time of approval, the permit shall be conditioned to protect the
levels or flows. No agency may establish minimum flows and levels or
similar water flow or level restrictions for any stream or lake of the
state other than the department of ecology whose authority to establish
is exclusive, as provided in chapter 90.03 RCW and RCW 90.22.010 and
90.54.040. The provisions of other statutes, including but not limited
to RCW ((77.55.100)) 77.55.021 and chapter 43.21C RCW, may not be
interpreted in a manner that is inconsistent with this section. In
establishing such minimum flows, levels, or similar restrictions, the
department shall, during all stages of development ((by the department
of ecology)) of minimum flow proposals, consult with, and carefully
consider the recommendations of((, the department of fish and wildlife,
the department of community, trade, and economic development, the
department of agriculture, and representatives of the)) affected Indian
tribes. ((Nothing herein shall preclude the department of fish and
wildlife, the department of community, trade, and economic development,
or the department of agriculture from presenting its views on minimum
flow needs at any public hearing or to any person or agency, and the
department of fish and wildlife, the department of community, trade,
and economic development, and the department of agriculture are each
empowered to participate in proceedings of the federal energy
regulatory commission and other agencies to present its views on
minimum flow needs.))
Sec. 67 RCW 90.03.280 and 1994 c 264 s 83 are each amended to
read as follows:
Upon receipt of a proper application, the department shall instruct
the applicant to publish notice thereof in a form and within a time
prescribed by the department in a newspaper of general circulation
published in the county or counties in which the storage, diversion,
and use is to be made, and in such other newspapers as the department
may direct, once a week for two consecutive weeks. ((Upon receipt by
the department of an application it shall send notice thereof
containing pertinent information to the director of fish and
wildlife.))
Sec. 68 RCW 90.03.290 and 2001 c 239 s 1 are each amended to read
as follows:
(1) When an application complying with the provisions of this
chapter and with the rules of the department has been filed, the same
shall be placed on record with the department, and it shall be its duty
to investigate the application, and determine what water, if any, is
available for appropriation, and find and determine to what beneficial
use or uses it can be applied. If it is proposed to appropriate water
for irrigation purposes, the department shall investigate, determine
and find what lands are capable of irrigation by means of water found
available for appropriation. If it is proposed to appropriate water
for the purpose of power development, the department shall investigate,
determine and find whether the proposed development is likely to prove
detrimental to the public interest, having in mind the highest feasible
use of the waters belonging to the public.
(2)(a) If the application does not contain, and the applicant does
not promptly furnish sufficient information on which to base such
findings, the department may issue a preliminary permit, for a period
of not to exceed three years, requiring the applicant to make such
surveys, investigations, studies, and progress reports, as in the
opinion of the department may be necessary. If the applicant fails to
comply with the conditions of the preliminary permit, it and the
application or applications on which it is based shall be automatically
canceled and the applicant so notified. If the holder of a preliminary
permit shall, before its expiration, file with the department a
verified report of expenditures made and work done under the
preliminary permit, which, in the opinion of the department,
establishes the good faith, intent, and ability of the applicant to
carry on the proposed development, the preliminary permit may, with the
approval of the governor, be extended, but not to exceed a maximum
period of five years from the date of the issuance of the preliminary
permit.
(b) For any application for which a preliminary permit was issued
and for which the availability of water was directly affected by a
moratorium on further diversions from the Columbia river during the
years from 1990 to 1998, the preliminary permit is extended through
June 30, 2002. If such an application and preliminary permit were
canceled during the moratorium, the application and preliminary permit
shall be reinstated until June 30, 2002, if the application and permit:
(i) Are for providing regional water supplies in more than one urban
growth area designated under chapter 36.70A RCW and in one or more
areas near such urban growth areas, or the application and permit are
modified for providing such supplies, and (ii) provide or are modified
to provide such regional supplies through the use of existing intake or
diversion structures. The authority to modify such a canceled
application and permit to accomplish the objectives of (b)(i) and (ii)
of this subsection is hereby granted.
(3) The department shall make and file as part of the record in the
matter, written findings of fact concerning all things investigated,
and if it shall find that there is water available for appropriation
for a beneficial use, and the appropriation thereof as proposed in the
application will not impair existing rights or be detrimental to the
public welfare, it shall issue a permit stating the amount of water to
which the applicant shall be entitled and the beneficial use or uses to
which it may be applied: PROVIDED, That where the water applied for is
to be used for irrigation purposes, it shall become appurtenant only to
such land as may be reclaimed thereby to the full extent of the soil
for agricultural purposes. But where there is no unappropriated water
in the proposed source of supply, or where the proposed use conflicts
with existing rights, or threatens to prove detrimental to the public
interest, having due regard to the highest feasible development of the
use of the waters belonging to the public, it shall be duty of the
department to reject such application and to refuse to issue the permit
asked for.
(4) If the permit is refused because of conflict with existing
rights and such applicant shall acquire same by purchase or
condemnation under RCW 90.03.040, the department may thereupon grant
such permit. Any application may be approved for a less amount of
water than that applied for, if there exists substantial reason
therefor, and in any event shall not be approved for more water than
can be applied to beneficial use for the purposes named in the
application. In determining whether or not a permit shall issue upon
any application, it shall be the duty of the department to investigate
all facts relevant and material to the application. After the
department approves said application in whole or in part and before any
permit shall be issued thereon to the applicant, such applicant shall
pay the fee provided in RCW 90.03.470((: PROVIDED FURTHER, That in the
event a permit is issued by the department upon any application, it
shall be its duty to notify the director of fish and wildlife of such
issuance)).
Sec. 69 RCW 90.03.360 and 1994 c 264 s 85 are each amended to
read as follows:
(1) The owner or owners of any water diversion shall maintain, to
the satisfaction of the department of ecology, substantial controlling
works and a measuring device constructed and maintained to permit
accurate measurement and practical regulation of the flow of water
diverted. Every owner or manager of a reservoir for the storage of
water shall construct and maintain, when required by the department,
any measuring device necessary to ascertain the natural flow into and
out of said reservoir.
Metering of diversions or measurement by other approved methods
shall be required as a condition for all new surface water right
permits, and except as provided in subsection (2) of this section, may
be required as a condition for all previously existing surface water
rights. The department may also require, as a condition for all water
rights, metering of diversions, and reports regarding such metered
diversions as to the amount of water being diverted. Such reports
shall be in a form prescribed by the department.
(2) Where water diversions are from waters in which the salmonid
stock status is depressed or critical, as determined by the department
of fish and wildlife, or where the volume of water being diverted
exceeds one cubic foot per second, the department shall require
metering or measurement by other approved methods as a condition for
all new and previously existing water rights or claims. The department
shall attempt to integrate the requirements of this subsection into its
existing compliance workload priorities, but shall prioritize the
requirements of this subsection ahead of the existing compliance
workload where a delay may cause the decline of wild salmonids. ((The
department shall notify the department of fish and wildlife of the
status of fish screens associated with these diversions.)) This
subsection (2) shall not apply to diversions for public or private
hatcheries or fish rearing facilities if the diverted water is returned
directly to the waters from which it was diverted.
Sec. 70 RCW 90.03.590 and 2003 1st sp.s. c 5 s 16 are each
amended to read as follows:
(1) On a pilot project basis, the department may enter into a
watershed agreement with one or more municipal water suppliers in water
resource inventory area number one to meet the objectives established
in a water resource management program approved or being developed
under chapter 90.82 RCW with the consent of the initiating governments
of the water resource inventory area. The term of an agreement may not
exceed ten years, but the agreement may be renewed or amended upon
agreement of the parties.
(2) A watershed agreement must be consistent with:
(a) Growth management plans developed under chapter 36.70A RCW
where these plans are adopted and in effect;
(b) Water supply plans and small water system management programs
approved under chapter 43.20 or 70.116 RCW;
(c) Coordinated water supply plans approved under chapter 70.116
RCW; and
(d) Water use efficiency and conservation requirements and
standards established by the state department of health or such
requirements and standards as are provided in an approved watershed
plan, whichever are the more stringent.
(3) A watershed agreement must:
(a) Require the public water system operated by the participating
municipal water supplier to meet obligations under the watershed plan;
(b) Establish performance measures and timelines for measures to be
completed;
(c) Provide for monitoring of stream flows and metering of water
use as needed to ensure that the terms of the agreement are met; and
(d) Require annual reports from the water users regarding
performance under the agreement.
(4) As needed to implement watershed agreement activities, the
department may provide or receive funding, or both, under its existing
authorities.
(5) The department must provide opportunity for public review of a
proposed agreement before it is executed. The department must make
proposed and executed watershed agreements and annual reports available
on the department's internet web site.
(6) The department must consult with affected local governments
((and the state departments of health and fish and wildlife)) before
executing an agreement.
(7) Before executing a watershed agreement, the department must
conduct a government-to-government consultation with affected tribal
governments. The municipal water suppliers operating the public water
systems that are proposing to enter into the agreements must be invited
to participate in the consultations. During these consultations, the
department and the municipal water suppliers shall explore the
potential interest of the tribal governments or governments in
participating in the agreement.
(8) Any person aggrieved by the department's failure to satisfy the
requirements in subsection (3) of this section as embodied in the
department's decision to enter into a watershed agreement under this
section may, within thirty days of the execution of such an agreement,
appeal the department's decision to the pollution control hearings
board under chapter 43.21B RCW.
(9) Any projects implemented by a municipal water system under the
terms of an agreement reached under this section may be continued and
maintained by the municipal water system after the agreement expires or
is terminated as long as the conditions of the agreement under which
they were implemented continue to be met.
(10) Before December 31, 2003, and December 31, 2004, the
department must report to the appropriate committees of the legislature
the results of the pilot project provided for in this section. Based
on the experience of the pilot project, the department must offer any
suggested changes in law that would improve, facilitate, and maximize
the implementation of watershed plans adopted under this chapter.
Sec. 71 RCW 90.16.050 and 2007 c 286 s 1 are each amended to read
as follows:
(1) Every person, firm, private or municipal corporation, or
association hereinafter called "claimant", claiming the right to the
use of water within or bordering upon the state of Washington for power
development, shall on or before the first day of January of each year
pay to the state of Washington in advance an annual license fee, based
upon the theoretical water power claimed under each and every separate
claim to water according to the following schedule:
(a) For projects in operation: For each and every theoretical
horsepower claimed up to and including one thousand horsepower, at the
rate of eighteen cents per horsepower; for each and every theoretical
horsepower in excess of one thousand horsepower, up to and including
ten thousand horsepower, at the rate of three and six-tenths cents per
horsepower; for each and every theoretical horsepower in excess of ten
thousand horsepower, at the rate of one and eight-tenths cents per
horsepower.
(b) For federal energy regulatory commission projects in operation,
the following fee schedule applies in addition to the fees in (a) of
this subsection: For each theoretical horsepower of capacity up to and
including one thousand horsepower, at the rate of thirty-two cents per
horsepower; for each theoretical horsepower in excess of one thousand
horsepower, up to and including ten thousand horsepower, at the rate of
six and four-tenths cents per horsepower; for each theoretical
horsepower in excess of ten thousand horsepower, at the rate of three
and two-tenths cents per horsepower.
(c) To justify the appropriate use of fees collected under (b) of
this subsection, the department of ecology shall submit a progress
report to the appropriate committees of the legislature prior to
December 31, 2009, and biennially thereafter until December 31, 2017.
(i) The progress report will: (A) Describe how license fees were
expended in the federal energy regulatory commission licensing process
during the current biennium, and expected workload and full-time
equivalent employees for federal energy regulatory commission licensing
in the next biennium; (B) include any recommendations based on
consultation with ((the departments of ecology and fish and wildlife,))
hydropower project operators((,)) and other interested parties; and (C)
recognize hydropower operators that exceed their environmental
regulatory requirements.
(ii) The fees required in (b) of this subsection expire June 30,
2017. The biennial progress reports submitted by the department of
ecology will serve as a record for considering the extension of the fee
structure in (b) of this subsection.
(2) The following are exceptions to the fee schedule in subsection
(1) of this section:
(a) For undeveloped projects, the fee shall be at one-half the
rates specified for projects in operation; for projects partly
developed and in operation the fees paid on that portion of any project
that shall have been developed and in operation shall be the full
annual license fee specified in subsection (1) of this section for
projects in operation, and for the remainder of the power claimed under
such project the fees shall be the same as for undeveloped projects.
(b) The fees required in subsection (1) of this section do not
apply to any hydropower project owned by the United States.
(c) The fees required in subsection (1) of this section do not
apply to the use of water for the generation of fifty horsepower or
less.
(d) The fees required in subsection (1) of this section for
projects developed by an irrigation district in conjunction with the
irrigation district's water conveyance system shall be reduced by fifty
percent to reflect the portion of the year when the project is not
operable.
(e) Any irrigation district or other municipal subdivision of the
state, developing power chiefly for use in pumping of water for
irrigation, upon the filing of a statement showing the amount of power
used for irrigation pumping, is exempt from the fees in subsection (1)
of this section to the extent of the power used for irrigation pumping.
Sec. 72 RCW 90.16.090 and 2007 c 286 s 2 are each amended to read
as follows:
(1) All fees paid under provisions of this chapter, shall be
credited by the state treasurer to the reclamation account created in
RCW 89.16.020 and subject to legislative appropriation, be allocated
and expended by the director of ecology for:
(a) Investigations and surveys of natural resources in cooperation
with the federal government, or independently thereof, including stream
gaging, hydrographic, topographic, river, underground water, mineral
and geological surveys; and
(b) Expenses associated with staff at the department((s)) of
ecology ((and fish and wildlife)) working on federal energy regulatory
commission relicensing and license implementation.
(2) Unless otherwise required by the omnibus biennial
appropriations acts, the expenditures for these purposes must be
proportional to the revenues collected under RCW 90.16.050(1).
Sec. 73 RCW 90.22.010 and 1997 c 32 s 4 are each amended to read
as follows:
The department of ecology may establish minimum water flows or
levels for streams, lakes or other public waters for the purposes of
protecting fish, game, birds or other wildlife resources, or
recreational or aesthetic values of said public waters whenever it
appears to be in the public interest to establish the same. In
addition, the department of ecology shall((, when requested by the
department of fish and wildlife to)) protect fish, game, or other
wildlife resources ((under the jurisdiction of the requesting state
agency)), or if the department of ecology finds it necessary to
preserve water quality, establish such minimum flows or levels as are
required to protect the resource or preserve the water quality
((described in the request or determination)). ((Any request submitted
by the department of fish and wildlife shall include a statement
setting forth the need for establishing a minimum flow or level.))
When the department acts to preserve water quality, it shall include a
((similar)) statement setting forth the need for establishing a minimum
flow or level with the proposed rule filed with the code reviser. This
section shall not apply to waters artificially stored in reservoirs,
provided that in the granting of storage permits by the department of
ecology in the future, full recognition shall be given to downstream
minimum flows, if any there may be, which have theretofore been
established hereunder.
Sec. 74 RCW 90.22.020 and 1994 c 264 s 87 are each amended to
read as follows:
Flows or levels authorized for establishment under RCW 90.22.010,
or subsequent modification thereof by the department shall be provided
for through the adoption of rules. Before the establishment or
modification of a water flow or level for any stream or lake or other
public water, the department shall hold a public hearing in the county
in which the stream, lake, or other public water is located. If it is
located in more than one county the department shall determine the
location or locations therein and the number of hearings to be
conducted. Notice of the hearings shall be given by publication in a
newspaper of general circulation in the county or counties in which the
stream, lake, or other public waters is located, once a week for two
consecutive weeks before the hearing. The notice shall include the
following:
(1) The name of each stream, lake, or other water source under
consideration;
(2) The place and time of the hearing;
(3) A statement that any person, including any private citizen or
public official, may present his or her views either orally or in
writing.
((Notice of the hearing shall also be served upon the
administrators of the departments of social and health services,
natural resources, fish and wildlife, and transportation.))
Sec. 75 RCW 90.22.060 and 1998 c 245 s 172 are each amended to
read as follows:
By December 31, 1993, the department of ecology shall, in
cooperation with the Indian tribes, ((and the department of fish and
wildlife,)) establish a statewide list of priorities for evaluation of
instream flows. In establishing these priorities, the department shall
consider the achievement of wild salmonid production as its primary
goal.
Sec. 76 RCW 90.24.010 and 1999 c 162 s 1 are each amended to read
as follows:
Ten or more owners of real property abutting on a lake may petition
the superior court of the county in which the lake is situated, for an
order to provide for the regulation of the outflow of the lake in order
to maintain a certain water level therein. If there are fewer than ten
owners, a majority of the owners abutting on a lake may petition the
superior court for such an order. The court, after ((notice to the
department of fish and wildlife and)) a hearing, is authorized to make
an order fixing the water level thereof and directing the department of
ecology to regulate the outflow therefrom in accordance with the
purposes described in the petition. This section shall not apply to
any lake or reservoir used for the storage of water for irrigation or
other beneficial purposes, or to lakes navigable from the sea.
Sec. 77 RCW 90.24.030 and 1994 c 264 s 88 are each amended to
read as follows:
The petition shall be entitled "In the matter of fixing the level
of Lake . . . . . . in . . . . . . county, Washington", and shall be
filed with the clerk of the court and a copy thereof, together with a
copy of the order fixing the time for hearing the petition, shall be
served on each owner of property abutting on the lake, not less than
ten days before the hearing. Like copies shall also be served upon
((the director of fish and wildlife and)) the director of ecology. The
copy of the petition and of the order fixing time for hearing shall be
served in the manner provided by law for the service of summons in
civil actions, or in such other manner as may be prescribed by order of
the court. For the benefit of every riparian owner abutting on a
stream or river flowing from such lake, a copy of the notice of hearing
shall be published at least once a week for two consecutive weeks
before the time set for hearing in a newspaper in each county or
counties wherein located, said notice to contain a brief statement of
the reasons and necessity for such application.
Sec. 78 RCW 90.24.060 and 1994 c 264 s 89 are each amended to
read as follows:
Such improvement or device in said lake for the protection of the
fish and game fish therein shall be installed by and under the
direction of the board of county commissioners of said county with the
approval of the ((respective directors of the department of fish and
wildlife and)) director of the department of ecology of the state of
Washington and paid for out of the special fund provided for in RCW
90.24.050.
Sec. 79 RCW 90.38.040 and 2001 c 237 s 29 are each amended to
read as follows:
(1) All trust water rights acquired by the department shall be
placed in the Yakima river basin trust water rights program to be
managed by the department. The department shall issue a water right
certificate in the name of the state of Washington for each trust water
right it acquires.
(2) Trust water rights shall retain the same priority date as the
water right from which they originated. Trust water rights may be
modified as to purpose or place of use or point of diversion, including
modification from a diversionary use to a nondiversionary instream use.
(3) Trust water rights may be held by the department for instream
flows, irrigation use, or other beneficial use. Trust water rights may
be acquired on a temporary or permanent basis. To the extent
practicable and subject to legislative appropriation, trust water
rights acquired in an area with an approved watershed plan developed
under chapter 90.82 RCW shall be consistent with that plan if the plan
calls for such acquisition.
(4) A schedule of the amount of net water saved as a result of
water conservation projects carried out in accordance with this
chapter, shall be developed annually to reflect the predicted
hydrologic and water supply conditions, as well as anticipated water
demands, for the upcoming irrigation season. This schedule shall serve
as the basis for the distribution and management of trust water rights
each year.
(5)(a) No exercise of a trust water right may be authorized unless
the department first determines that no existing water rights, junior
or senior in priority, will be impaired as to their exercise or injured
in any manner whatever by such authorization.
(b) Before any trust water right is exercised, the department shall
publish notice thereof in a newspaper of general circulation published
in the county or counties in which the storage, diversion, and use are
to be made, and in such other newspapers as the department determines
are necessary, once a week for two consecutive weeks. ((At the same
time the department may also send notice thereof containing pertinent
information to the director of fish and wildlife.))
(c) Subsections (4) and (5)(b) of this section do not apply to a
trust water right resulting from a donation for instream flows
described in RCW 90.38.020(1)(b) or from the lease of a water right
under RCW 90.38.020(6) if the period of the lease does not exceed five
years. However, the department shall provide the notice described in
(b) of this subsection the first time the trust water right resulting
from the donation is exercised.
(6) RCW 90.03.380 and 90.14.140 through 90.14.910 shall have no
applicability to trust water rights held by the department under this
chapter or exercised under this section.
Sec. 80 RCW 90.48.170 and 1994 c 264 s 91 are each amended to
read as follows:
Applications for permits shall be made on forms prescribed by the
department and shall contain the name and address of the applicant, a
description of the applicant's operations, the quantity and type of
waste material sought to be disposed of, the proposed method of
disposal, and any other relevant information deemed necessary by the
department. Application for permits shall be made at least sixty days
prior to commencement of any proposed discharge or permit expiration
date, whichever is applicable. Upon receipt of a proper application
relating to a new operation, or an operation previously under permit
for which an increase in volume of wastes or change in character of
effluent is requested over that previously authorized, the department
shall instruct the applicant to publish notices thereof by such means
and within such time as the department shall prescribe. The department
shall require that the notice so prescribed shall be published twice in
a newspaper of general circulation within the county in which the
disposal of waste material is proposed to be made and in such other
appropriate information media as the department may direct. Said
notice shall include a statement that any person desiring to present
his or her views to the department with regard to said application may
do so in writing to the department, or any person interested in the
department's action on an application for a permit, may submit his or
her views or notify the department of his or her interest within thirty
days of the last date of publication of notice. Such notification or
submission of views to the department shall entitle said persons to a
copy of the action taken on the application. ((Upon receipt by the
department of an application, it shall immediately send notice thereof
containing pertinent information to the director of fish and wildlife
and to the secretary of social and health services.)) When an
application complying with the provisions of this chapter and the rules
and regulations of the department has been filed with the department,
it shall be its duty to investigate the application, and determine
whether the use of public waters for waste disposal as proposed will
pollute the same in violation of the public policy of the state.
Sec. 81 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 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. 82 RCW 90.48.445 and 1999 sp.s. c 11 s 1 are each amended to
read as follows:
(1) The director shall issue or approve water quality permits for
use by federal, state, or local governmental agencies and licensed
applicators for the purpose of using, for aquatic noxious weed control,
herbicides and surfactants registered under state or federal pesticide
control laws, and for the purpose of experimental use of herbicides on
aquatic sites, as defined in 40 C.F.R. Sec. 172.3. The issuance of the
permits shall be subject only to compliance with: Federal and state
pesticide label requirements, the requirements of the federal
insecticide, fungicide, and rodenticide act, the Washington pesticide
control act, the Washington pesticide application act, and the state
environmental policy act, except that:
(a) When the director issues water quality permits for the purpose
of using glyphosate and surfactants registered by the department of
agriculture to control spartina, as defined by RCW 17.26.020, the water
quality permits shall contain the following criteria:
(i) Spartina treatment shall occur between June 1st and October
31st of each year unless the department((, the department of
agriculture, and the department of fish and wildlife agree to add))
authorizes additional dates beyond this period, except that no aerial
application shall be allowed on July 4th or Labor Day and for ground
application on those days the applicator shall post signs at each
corner of the treatment area;
(ii) The applicator shall take all reasonable precautions to
prevent the spraying of nontarget vegetation and nonvegetated areas;
(iii) A period of fourteen days between treatments is required
prior to re-treating the previously treated areas;
(iv) Aerial or ground broadcast application shall not be made when
the wind speed exceeds ten miles per hour; and
(v) An application shall not be made when a tidal regime leaves the
plants dry for less than four hours.
(b) The director shall issue water quality permits for the purpose
of using herbicides or surfactants registered by the department of
agriculture to control aquatic noxious weeds, other than spartina, and
the permit shall state that aerial and ground broadcast applications
may not be made when the wind speed exceeds ten miles per hour.
(c) The director shall issue water quality permits for the
experimental use of herbicides on aquatic sites, as defined in 40
C.F.R. Sec. 172.3, when the department of agriculture has issued an
experimental use permit, under the authority of RCW 15.58.405(3).
Because of the small geographic areas involved and the short duration
of herbicide application, water quality permits issued under this
subsection are not subject to state environmental policy act review.
(2) Applicable requirements established in an option or options
recommended for controlling the noxious weed by a final environmental
impact statement published under chapter 43.21C RCW by the department
prior to May 5, 1995, by the department of agriculture, or by the
department of agriculture jointly with other state agencies shall be
considered guidelines for the purpose of granting the permits issued
under this chapter. This section may not be construed as requiring the
preparation of a new environmental impact statement to replace a final
environmental impact statement published before May 5, 1995, but
instead shall authorize the department of agriculture, as lead agency
for the control of spartina under RCW 17.26.015, to supplement, amend,
or issue addenda to the final environmental impact statement published
before May 5, 1995, which may assess the environmental impact of the
application of stronger concentrations of active ingredients, altered
application patterns, or other changes as the department of agriculture
deems appropriate.
(3) The director of ecology may not utilize this permit authority
to otherwise condition or burden weed control efforts. Except for
permits issued by the director under subsection (1)(c) of this section,
permits issued under this section are effective for five years, unless
a shorter duration is requested by the applicant. The director's
authority to issue water quality modification permits for activities
other than the application of surfactants and approved herbicides, to
control aquatic noxious weeds or the experimental use of herbicides
used on aquatic sites, as defined in 40 C.F.R. Sec. 172.3, is
unaffected by this section.
(4) As used in this section, "aquatic noxious weed" means an
aquatic weed on the state noxious weed list adopted under RCW
17.10.080.
Sec. 83 RCW 90.48.448 and 1999 c 255 s 3 are each amended to read
as follows:
(1) Subject to restrictions in this section, a government entity
seeking to control a limited infestation of Eurasian water milfoil may
use the pesticide 2,4-D to treat the milfoil infestation, without
obtaining a permit under RCW 90.48.445, if the milfoil infestation is
either recently documented or remaining after the application of other
control measures, and is limited to twenty percent or less of the
littoral zone of the lake. Any pesticide application made under this
section must be made according to all label requirements for the
product and must meet the public notice requirements of subsection (2)
of this section.
(2) Before applying 2,4-D, the government entity shall: (a)
Provide at least twenty-one days' notice to the department of
ecology((, the department of fish and wildlife, the department of
agriculture, the department of health,)) and all lake residents; (b)
post notices of the intent to apply 2,4-D at all public access points;
and (c) place informational buoys around the treatment area.
(3) The department ((of fish and wildlife)) may impose timing
restrictions on the use of 2,4-D to protect salmon and other fish and
wildlife.
(4) The department may prohibit the use of 2,4-D if the department
finds the product contains dioxin in excess of the standard allowed by
the United States environmental protection agency. Sampling protocols
and analysis used by the department under this section must be
consistent with those used by the United States environmental
protection agency for testing this product.
(5) Government entities using this section to apply 2,4-D may apply
for funds from the freshwater aquatic weeds account consistent with the
freshwater aquatic weeds management program as provided in RCW
43.21A.660.
(6) Government entities using this section shall consider
development of long-term control strategies for eradication and control
of the Eurasian water milfoil.
(7) For the purpose of this section, "government entities" includes
cities, counties, state agencies, tribes, special purpose districts,
and county weed boards.
Sec. 84 RCW 90.74.020 and 1997 c 424 s 3 are each amended to read
as follows:
(1) Project proponents may use a mitigation plan to propose
compensatory mitigation within a watershed. A mitigation plan shall:
(a) Contain provisions that guarantee the long-term viability of
the created, restored, enhanced, or preserved habitat, including
assurances for protecting any essential biological functions and values
defined in the mitigation plan;
(b) Contain provisions for long-term monitoring of any created,
restored, or enhanced mitigation site; and
(c) Be consistent with the local comprehensive land use plan and
any other applicable planning process in effect for the development
area, such as an adopted subbasin or watershed plan.
(2) The department((s)) of ecology ((and fish and wildlife)) may
not limit the scope of options in a mitigation plan to areas on or near
the project site, or to habitat types of the same type as contained on
the project site. The department((s)) of ecology ((and fish and
wildlife)) shall fully review and give due consideration to
compensatory mitigation proposals that improve the overall biological
functions and values of the watershed or bay and accommodate the
mitigation needs of infrastructure development.
The department((s)) of ecology ((and fish and wildlife are)) is not
required to grant approval to a mitigation plan that the
department((s)) finds does not provide equal or better biological
functions and values within the watershed or bay.
(3) When making a permit or other regulatory decision under the
guidance of this chapter, the department((s of ecology and fish and
wildlife)) shall consider whether the mitigation plan provides equal or
better biological functions and values, compared to the existing
conditions, for the target resources or species identified in the
mitigation plan. This consideration shall be based upon the following
factors:
(a) The relative value of the mitigation for the target resources,
in terms of the quality and quantity of biological functions and values
provided;
(b) The compatibility of the proposal with the intent of broader
resource management and habitat management objectives and plans, such
as existing resource management plans, watershed plans, critical areas
ordinances, and shoreline master programs;
(c) The ability of the mitigation to address scarce functions or
values within a watershed;
(d) The benefits of the proposal to broader watershed landscape,
including the benefits of connecting various habitat units or providing
population-limiting habitats or functions for target species;
(e) The benefits of early implementation of habitat mitigation for
projects that provide compensatory mitigation in advance of the
project's planned impacts; and
(f) The significance of any negative impacts to nontarget species
or resources.
(4) A mitigation plan may be approved through a memorandum of
agreement between the project proponent and ((either)) the department
of ecology ((or the department of fish and wildlife, or both)).
Sec. 85 RCW 90.74.030 and 1997 c 424 s 4 are each amended to read
as follows:
(1) In making regulatory decisions relating to wetland or aquatic
resource mitigation, the department((s of ecology and fish and
wildlife)) shall, at the request of the project proponent, follow the
guidance of RCW 90.74.005 through 90.74.020.
(2) If the department of ecology ((or the department of fish and
wildlife)) receives multiple requests for review of mitigation plans,
((each)) the department may schedule its review of these proposals to
conform to available budgetary resources.
Sec. 86 RCW 90.82.048 and 2003 1st sp.s. c 5 s 9 are each amended
to read as follows:
(1) The timelines and interim milestones in a detailed
implementation plan required by RCW 90.82.043 must address the planned
future use of existing water rights for municipal water supply
purposes, as defined in RCW 90.03.015, that are inchoate, including how
these rights will be used to meet the projected future needs identified
in the watershed plan, and how the use of these rights will be
addressed when implementing instream flow strategies identified in the
watershed plan.
(2) The watershed planning unit or other authorized lead agency
shall ensure that holders of water rights for municipal water supply
purposes not currently in use are asked to participate in defining the
timelines and interim milestones to be included in the detailed
implementation plan.
(3) The department of health shall annually compile a list of water
system plans and plan updates to be reviewed by the department during
the coming year and shall ((consult with the departments of community,
trade, and economic development, ecology, and fish and wildlife to)):
(a) Identify watersheds where further coordination is needed between
water system planning and local watershed planning under this chapter;
and (b) develop a work plan for conducting the necessary coordination.
Sec. 87 RCW 90.90.020 and 2006 c 6 s 3 are each amended to read
as follows:
(1)(a) Water supplies secured through the development of new
storage facilities made possible with funding from the Columbia river
basin water supply development account shall be allocated as follows:
(i) Two-thirds of active storage shall be available for
appropriation for out-of-stream uses; and
(ii) One-third of active storage shall be available to augment
instream flows and shall be managed by the department of ecology. The
timing of releases of this water shall be determined by the department
of ecology, in cooperation with the ((department of fish and wildlife
and)) fisheries comanagers, to maximize benefits to salmon and
steelhead populations.
(b) Water available for appropriation under (a)(i) of this
subsection but not yet appropriated shall be temporarily available to
augment instream flows to the extent that it does not impair existing
water rights.
(2) Water developed under the provisions of this section to offset
out-of-stream uses and for instream flows is deemed adequate mitigation
for the issuance of new water rights provided for in subsection (1)(a)
of this section and satisfies all consultation requirements under state
law related to the issuance of new water rights.
(3) The department of ecology shall focus its efforts to develop
water supplies for the Columbia river basin on the following needs:
(a) Alternatives to groundwater for agricultural users in the
Odessa subarea aquifer;
(b) Sources of water supply for pending water right applications;
(c) A new uninterruptible supply of water for the holders of
interruptible water rights on the Columbia river mainstem that are
subject to instream flows or other mitigation conditions to protect
stream flows; and
(d) New municipal, domestic, industrial, and irrigation water needs
within the Columbia river basin.
(4) The one-third/two-thirds allocation of water resources between
instream and out-of-stream uses established in this section does not
apply to applications for changes or transfers of existing water rights
in the Columbia river basin.
Sec. 88 RCW 90.90.030 and 2006 c 6 s 4 are each amended to read
as follows:
(1) The department of ecology may enter into voluntary regional
agreements for the purpose of providing new water for out-of-stream
use, streamlining the application process, and protecting instream
flow.
(2) Such agreements shall ensure that:
(a) For water rights issued from the Columbia river mainstem, there
is no negative impact on Columbia river mainstem instream flows in the
months of July and August as a result of the new appropriations issued
under the agreement;
(b) For water rights issued from the lower Snake river mainstem,
there is no negative impact on Snake river mainstem instream flows from
April through August as a result of the new appropriations issued under
the agreement; and
(c) Efforts are made to harmonize such agreements with watershed
plans adopted under the authority of chapter 90.82 RCW that are
applicable to the area covered by the agreement.
(3) The protection of instream flow as set forth in subsection (2)
of this section is adequate for purposes of mitigating instream flow
impacts resulting from any appropriations for out-of-stream use made
under a voluntary regional agreement, and the only applicable
consultation provisions under state law regarding instream flow impacts
shall be those set forth in subsection (4) of this section.
(4) Before executing a voluntary agreement under this section, the
department of ecology shall:
(a) Provide a sixty-day period for consultation with county
legislative authorities and watershed planning groups with jurisdiction
over the area where the water rights included in the agreement are
located, ((the department of fish and wildlife,)) and affected tribal
governments, and federal agencies. ((The department of fish and
wildlife shall provide written comments within that time period.)) The
consultation process for voluntary regional agreements developed under
the provisions of this section is deemed adequate for the issuance of
new water rights provided for in this section and satisfies all
consultation requirements under state law related to the issuance of
new water rights; and
(b) Provide a thirty-day public review and comment period for a
draft agreement, and publish a summary of any public comments received.
The thirty-day review period shall not begin until after the department
of ecology has concluded its consultation under (a) of this subsection
and the comments that have been received by the department are made
available to the public.
(5) The provisions of subsection (4) of this section satisfy all
applicable consultation requirements under state law.
(6) The provisions of this section and any voluntary regional
agreements developed under such provisions may not be relied upon by
the department of ecology as a precedent, standard, or model that must
be followed in any other voluntary regional agreements.
(7) Nothing in this section may be interpreted or administered in
a manner that precludes the processing of water right applications
under chapter 90.03 or 90.44 RCW that are not included in a voluntary
regional agreement.
(8) Nothing in this section may be interpreted or administered in
a manner that impairs or diminishes a valid water right or a habitat
conservation plan approved for purposes of compliance with the federal
endangered species act.
(9) The department of ecology shall monitor and evaluate the water
allocated to instream and out-of-stream uses under this section,
evaluate the program, and provide an interim report to the appropriate
committees of the legislature by June 30, 2008. A final report shall
be provided to the appropriate committees of the legislature by June
30, 2011.
(10) If the department of ecology executes a voluntary agreement
under this section that includes water rights appropriated from the
lower Snake river mainstem, the department shall develop aggregate data
in accordance with the provisions of RCW 90.90.050 for the lower Snake
river mainstem.
(11) Any agreement entered into under this section shall remain in
full force and effect through the term of the agreement regardless of
the expiration of this section.
(12) The definitions in this subsection apply to this section and
RCW 90.90.050, and may only be used for purposes of implementing these
sections.
(a) "Columbia river mainstem" means all water in the Columbia river
within the ordinary high water mark of the main channel of the Columbia
river between the border of the United States and Canada and the
Bonneville dam, and all groundwater within one mile of the high water
mark.
(b) "Lower Snake river mainstem" means all water in the lower Snake
river within the ordinary high water mark of the main channel of the
lower Snake river from the head of Ice Harbor pool to the confluence of
the Snake and Columbia rivers, and all groundwater within one mile of
the high water mark.
(13) This section expires June 30, 2012.
NEW SECTION. Sec. 89 RCW 77.55.121 is recodified as a section in
chapter 76.09 RCW.
NEW SECTION. Sec. 90 The following acts or parts of acts are
each repealed:
(1) RCW 79.13.610 (Grazing lands--Fish and wildlife goals--
Technical advisory committee--Implementation) and 1998 c 245 s 162 &
1993 sp.s. c 4 s 5;
(2) RCW 79.105.220 (Lease of tidelands in front of public parks)
and 2005 c 155 s 145, 2002 c 152 s 2, & 1984 c 221 s 5;
(3) RCW 79.135.230 (Intensive management plan for geoducks) and
2005 c 155 s 718, 1994 c 264 s 74, & 1984 c 221 s 26;
(4) RCW 79.135.310 (Inspection by director of fish and wildlife)
and 2005 c 155 s 711, 1994 c 264 s 71, & 1982 1st ex.s. c 21 s 143;
(5) RCW 79.135.430 (Seaweed--Enforcement) and 2005 c 155 s 717,
2003 c 334 s 444, 1994 c 286 s 3, & 1993 c 283 s 5;
(6) RCW 79.145.030 (Coordinating implementation -- Rules) and 2005 c
155 s 903, 1994 c 264 s 65, & 1989 c 23 s 3;
(7) RCW 79A.05.670 (Consultation with government agencies required)
and 1999 c 249 s 1102 & 1988 c 75 s 8;
(8) RCW 79A.05.735 (Mt. Si conservation area -- Management) and 2000
c 11 s 60, 1994 c 264 s 23, 1988 c 36 s 17, & 1977 ex.s. c 306 s 3;
(9) RCW 79A.50.070 (State lands used for state parks -- Certain funds
appropriated for rental to be deposited without deduction for
management purposes) and 1969 ex.s. c 189 s 3;
(10) RCW 76.09.160 (Right of entry by department of ecology) and
1974 ex.s. c 137 s 16; and
(11) RCW 77.12.360 (Withdrawal of state land from lease--Compensation) and 1980 c 78 s 54, 1969 ex.s. c 129 s 3, & 1955 c 36 s
77.12.360.