BILL REQ. #:  S-1459.2 

READ FIRST TIME 02/09/09.   

     AN ACT Relating to the dairy nutrient management program; amending RCW 90.64.010; adding a new section to chapter 90.64 RCW; repealing RCW 90.64.015, 90.64.140, and 90.64.160; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 90.64 RCW to read as follows:
     The director of agriculture may enter at all reasonable times in or upon dairy farms for the purpose of inspecting and investigating conditions relating to the pollution of any waters of the state.
     If the director of agriculture or the director's duly appointed agent is denied access to a dairy farm, he or she may apply to a court of competent jurisdiction for a search warrant authorizing access to the property and facilities at a reasonable time for purposes of conducting tests and inspections, taking samples, and examining records. To show that access is denied, the director of agriculture shall file with the court an affidavit or declarations containing a description of his or her attempts to notify and locate the owner or the owner's agent and to secure consent. Upon application, the court may issue a search warrant for the purposes requested.

Sec. 2   RCW 90.64.010 and 1998 c 262 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 nutrient management technical assistance team" means one or more professional engineers and local conservation district employees convened to serve one of four distinct geographic areas in the state.
     (14))) "Dairy producer" means a person who owns or operates a dairy farm.
     (((15))) (14) "Department" means the department of ecology under chapter 43.21A RCW.
     (((16))) (15) "Director" means the director of the department of ecology, or his or her designee.
     (((17))) (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.
     (((18))) (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; ((or))
     (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
     (((d))) (e) The lack of a certified dairy nutrient management plan for a dairy farm after December 31, 2003.

NEW SECTION.  Sec. 3   The following acts or parts of acts are each repealed:
     (1) RCW 90.64.015 (Environmental excellence program agreements--Effect on chapter) and 1997 c 381 s 29;
     (2) RCW 90.64.140 (Technical assistance teams -- Standards and specifications for dairy nutrient management plans) and 1998 c 262 s 10; and
     (3) RCW 90.64.160 (Grants for dairy producers -- Statement of environmental benefits -- Development of outcome-focused performance measures) and 2001 c 227 s 4.