ESSB 6406 -
By Representative Hudgins
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 The legislature finds that significant
opportunities exist to modify programs that provide for management and
protection of the state's natural resources, including the state's
forests, fish, and wildlife, in order to streamline regulatory
processes and achieve program efficiencies while at the same time
increasing the sustainability of program funding and maintaining
current levels of natural resource protection. The legislature intends
to update provisions relating to natural resource management and
regulatory programs including the hydraulic project approval program,
forest practices act, and state environmental policy act, in order to
achieve these opportunities.
Sec. 101 RCW 77.55.011 and 2010 c 210 s 26 are each reenacted and
amended to read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Bed" means the land below the ordinary high water lines of
state waters. This definition does not include irrigation ditches,
canals, storm water runoff devices, or other artificial watercourses
except where they exist in a natural watercourse that has been altered
artificially.
(2) "Board" means the pollution control hearings board created in
chapter 43.21B RCW.
(3) "Commission" means the state fish and wildlife commission.
(4) "Date of receipt" has the same meaning as defined in RCW
43.21B.001.
(5) "Department" means the department of fish and wildlife.
(6) "Director" means the director of the department of fish and
wildlife.
(7) "Emergency" means an immediate threat to life, the public,
property, or of environmental degradation.
(8) "Hydraulic project" means the construction or performance of
work that will use, divert, obstruct, or change the natural flow or bed
of any of the salt or freshwaters of the state.
(9) "Imminent danger" means a threat by weather, water flow, or
other natural conditions that is likely to occur within sixty days of
a request for a permit application.
(10) "Marina" means a public or private facility providing boat
moorage space, fuel, or commercial services. Commercial services
include but are not limited to overnight or live-aboard boating
accommodations.
(11) "Marine terminal" means a public or private commercial wharf
located in the navigable water of the state and used, or intended to be
used, as a port or facility for the storing, handling, transferring, or
transporting of goods to and from vessels.
(12) "Ordinary high water line" means the mark on the shores of all
water that will be found by examining the bed and banks and
ascertaining where the presence and action of waters are so common and
usual, and so long continued in ordinary years as to mark upon the soil
or vegetation a character distinct from the abutting upland. Provided,
that in any area where the ordinary high water line cannot be found,
the ordinary high water line adjoining saltwater is the line of mean
higher high water and the ordinary high water line adjoining freshwater
is the elevation of the mean annual flood.
(13) "Permit" means a hydraulic project approval permit issued
under this chapter.
(14) "Sandbars" includes, but is not limited to, sand, gravel,
rock, silt, and sediments.
(15) "Small scale prospecting and mining" means the use of only the
following methods: Pans; nonmotorized sluice boxes; concentrators; and
minirocker boxes for the discovery and recovery of minerals.
(16) "Spartina," "purple loosestrife," and "aquatic noxious weeds"
have the same meanings as defined in RCW 17.26.020.
(17) "Streambank stabilization" means those projects that prevent
or limit erosion, slippage, and mass wasting. These projects include,
but are not limited to, bank resloping, log and debris relocation or
removal, planting of woody vegetation, bank protection using rock or
woody material or placement of jetties or groins, gravel removal, or
erosion control.
(18) "Tide gate" means a one-way check valve that prevents the
backflow of tidal water.
(19) "Waters of the state" and "state waters" means all salt and
freshwaters waterward of the ordinary high water line and within the
territorial boundary of the state.
(20) "Emergency permit" means a verbal hydraulic project approval
or the written follow-up to the verbal approval issued to a person
under RCW 77.55.021(12).
(21) "Expedited permit" means a hydraulic project approval issued
to a person under RCW 77.55.021 (14) and (16).
(22) "Forest practices hydraulic project" means a hydraulic project
that requires a forest practices application or notification under
chapter 76.09 RCW.
(23) "Multiple site permit" means a hydraulic project approval
issued to a person under RCW 77.55.021 for hydraulic projects occurring
at more than one specific location and which includes site-specific
requirements.
(24) "Pamphlet hydraulic project" means a hydraulic project for the
removal or control of aquatic noxious weeds conducted under the aquatic
plants and fish pamphlet authorized by RCW 77.55.081, or for mineral
prospecting and mining conducted under the gold and fish pamphlet
authorized by RCW 77.55.091.
(25) "Permit modification" means a hydraulic project approval
issued to a person under RCW 77.55.021 that extends, renews, or changes
the conditions of a previously issued hydraulic project approval.
(26) "Repair or maintenance" means the care and upkeep of existing
structures.
Sec. 102 RCW 77.55.021 and 2010 c 210 s 27 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 201 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; and
(e) Payment of all applicable application fees charged by the
department under section 103 of this act.
(3) The department may establish direct billing accounts or other
funds transfer methods with permit applicants to satisfy the fee
payment requirements of section 103 of this act.
(4) The department may accept complete, written applications as
provided in this section for multiple site permits and may issue these
permits. For multiple site permits, each specific location must be
identified.
(5) With the exception of emergency permits as provided in
subsection (12) of this section, applications for permits must be
submitted to the department's headquarters office in Olympia. Requests
for emergency permits as provided in subsection (12) of this section
may be made to the permitting biologist assigned to the location in
which the emergency occurs, to the department's regional office in
which the emergency occurs, or to the department's headquarters office.
(6) Except as provided for emergency permits in subsection (12) of
this section, the department may not proceed with permit review until
all fees are paid in full as required in section 103 of this act.
(7)(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.
(b) Except as provided in this subsection and subsections (((8),
(10), and)) (12) through (14) and (16) 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))) (c) Immediately upon determination that the forty-five day
period is suspended under (b) of this subsection, the department shall
notify the applicant in writing of the reasons for the delay.
(((c))) (d) 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))) (8) 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.
(a) Except as provided in (b) of this subsection, issuance, denial,
conditioning, or modification of a permit shall be appealable to the
board within thirty days from the date of receipt of the decision as
provided in RCW 43.21B.230.
(b) Issuance, denial, conditioning, or modification of a permit may
be informally appealed to the department within thirty days from the
date of receipt of the decision. Requests for informal appeals must be
filed in the form and manner prescribed by the department by rule. A
permit decision that has been informally appealed to the department is
appealable to the board within thirty days from the date of receipt of
the department's decision on the informal appeal.
(((5))) (9)(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))) (10) The department may, after consultation with the
permittee, modify a permit due to changed conditions. A modification
under this subsection is not subject to the fees provided under section
103 of this act. The modification is appealable as provided in
subsection (((4))) (8) of this section. For a hydraulic project((s))
that diverts 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))) (11) 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 and payment of
applicable fees under section 103 of this act. A decision by the
department is appealable as provided in subsection (((4))) (8) of this
section. For a hydraulic project((s)) that diverts 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))) (12)(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)) verbal 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)) verbal permit must be
((established by the department and)) reduced to writing within thirty
days and complied with as provided for in this chapter.
(c) The department may not require the provisions of the state
environmental policy act, chapter 43.21C RCW, to be met as a condition
of issuing a permit under this subsection.
(((9))) (d) The department may not charge a person requesting an
emergency permit any of the fees authorized by section 103 of this act
until after the emergency permit is issued and reduced to writing.
(13) 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))) (14) 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))) (15)(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))) (7) 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))) (16) 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.
NEW SECTION. Sec. 103 A new section is added to chapter 77.55
RCW to read as follows:
(1) The department shall charge an application fee of one hundred
fifty dollars for a hydraulic project permit or permit modification
issued under RCW 77.55.021 where the project is located at or below the
ordinary high water line. The application fee established under this
subsection may only be charged after June 30, 2012, if section 104 of
this act has been enacted into law by that date.
(2) The following hydraulic projects are exempt from all fees
listed under this section:
(a) Hydraulic projects approved under applicant-funded contracts
with the department that pay for the costs of processing those
projects;
(b) If sections 201 through 203 of this act are enacted into law by
June 30, 2012, forest practices hydraulic projects;
(c) Pamphlet hydraulic projects; and
(d) Mineral prospecting and mining activities.
(3) All fees collected under this section must be deposited in the
hydraulic project approval account created in section 105 of this act.
(4) The fee provisions contained in this section are prospective
only. The department of fish and wildlife may not charge fees for
hydraulic project permits issued under this title prior to the
effective date of this section.
NEW SECTION. Sec. 104 (1) The University of Washington, through
colleges and schools with relevant subject matter expertise, shall
conduct a review of state, federal, and local natural resources,
environmental, and other regulatory programs to:
(a) Identify programs that regulate construction or the performance
of work conducted above the ordinary high water line;
(b) Identify construction activities or the performance of work
conducted above the ordinary high water line that potentially use,
divert, or change the natural flow or bed of any of the salt or
freshwaters of the state;
(c) Analyze the manner and degree to which the activities
identified in (b) of this subsection are regulated under the programs
identified in (a) of this subsection, including a qualitative review of
each program, including how well the requirements of the program are
implemented and a comparison of the programs;
(d) Using the analysis under (c) of this subsection, identify any
regulatory gaps that may exist in providing for the protection of fish
life for activities identified in (b) of this subsection that use,
divert, or change the natural flow or bed of any of the salt or
freshwaters of the state; and
(e) Identify the scale of the potential risk to fish life from any
regulatory gaps identified in (d) of this subsection.
(2) The University of Washington shall conduct the review in
consultation with appropriate federal and state agencies, local
governments, tribal governments, and business and environmental
interests. The University of Washington shall consult with and solicit
input from these entities both: (a) Through a forum gathering the
stakeholders together at the onset of the review to discuss matters
including the scope and timeline of the study; and (b) throughout the
review process. The University of Washington shall include a summary
of their comments on the outcomes of the review process in the report
required under subsection (3) of this section.
(3) The University of Washington shall submit a report detailing
the review to the appropriate standing committees of the senate and
house of representatives consistent with RCW 43.01.036 by September 1,
2014.
(4) This section expires January 1, 2015.
NEW SECTION. Sec. 105 A new section is added to chapter 77.55
RCW to read as follows:
(1) The hydraulic project approval account is created in the state
treasury. All receipts from application fees for hydraulic project
approval applications collected under section 103 of this act must be
deposited into the account.
(2) Except for unanticipated receipts under RCW 43.79.260 through
43.79.282, moneys in the hydraulic project approval account may be
spent only after appropriation.
(3) Expenditures from the hydraulic project approval account may be
used only to fund department activities relating to implementing and
operating the hydraulic project approval program.
Sec. 106 RCW 77.55.151 and 2005 c 146 s 502 are each amended to
read as follows:
(1) ((For a marina or marine terminal in existence on June 6, 1996,
or a marina or marine terminal that has received a permit for its
initial construction, a renewable, five-year permit shall be issued,
upon request, for regular maintenance activities of the marina or
marine terminal.)) Upon application under RCW 77.55.021, the department shall
issue a renewable, five-year general permit to a marina or marine
terminal for its regular maintenance activities identified in the
application.
(2) Upon construction of a new marina or marine terminal that has
received a permit, a renewable, five-year permit shall be issued, upon
request, for regular maintenance activities of the marina or marine
terminal.
(3) For the purposes of this section, regular maintenance
activities are only those activities necessary to restore the marina or
marine terminal to the conditions approved in the initial permit.
These activities may include, but are not limited to, dredging, piling
replacement, and float replacement.
(4)
(2) For the purposes of this section, regular maintenance
activities may include, but are not limited to:
(a) Maintenance or repair of a boat ramp, launch, or float within
the existing footprint;
(b) Maintenance or repair of an existing overwater structure within
the existing footprint;
(c) Maintenance or repair of boat lifts or railway launches;
(d) Maintenance or removal of pilings;
(e) Dredging of less than fifty cubic yards;
(f) Maintenance or repair of shoreline armoring or bank protection;
(g) Maintenance or repair of wetland, riparian, or estuarine
habitat; and
(h) Maintenance or repair of an existing outfall.
(3) The five-year permit must include a requirement that a
fourteen-day notice be given to the department before regular
maintenance activities begin.
(4) A permit under this section is subject to the application fee
provided in section 103 of this act.
Sec. 107 RCW 77.55.231 and 2005 c 146 s 601 are each amended to
read as follows:
(1) Conditions imposed upon a permit must be reasonably related to
the project. The permit conditions must ensure that the project
provides proper protection for fish life, but the department may not
impose conditions that attempt to optimize conditions for fish life
that are out of proportion to the impact of the proposed project.
(2) The permit must contain provisions allowing for minor
modifications to the plans and specifications without requiring
reissuance of the permit.
(3) The permit must contain provisions that allow for minor
modifications to the required work timing without requiring the
reissuance of the permit. "Minor modifications to the required work
timing" means a minor deviation from the timing window set forth in the
permit when there are no spawning or incubating fish present within the
vicinity of the project.
Sec. 108 RCW 77.55.291 and 2010 c 210 s 31 are each amended to
read as follows:
(1) ((The department may levy civil penalties of up to one hundred
dollars per day for violation of any provisions of RCW 77.55.021. The
penalty provided shall be imposed by notice in writing, either by
certified mail or personal service to the person incurring the penalty,
from the director or the director's designee describing the violation.)) (a) The director
may issue a compliance notice or order to a person who does any of the
following below ordinary high water mark only:
(2)(a) Except as provided in (b) of this subsection, any person
incurring any penalty under this chapter may appeal the same under
chapter 34.05 RCW to the board. Appeals shall be filed within thirty
days from the date of receipt of the penalty in accordance with RCW
43.21B.230.
(b) Issuance of a civil penalty may be informally appealed to the
department within thirty days from the date of receipt of the penalty.
Requests for informal appeal must be filed in the form and manner
prescribed by the department by rule. A civil penalty that has been
informally appealed to the department is appealable to the board within
thirty days from the date of receipt of the department's decision on
the informal appeal.
(3) The penalty imposed shall become due and payable thirty days
after receipt of a notice imposing the penalty unless an appeal is
filed. Whenever an appeal of any penalty incurred under this chapter
is filed, the penalty shall become due and payable only upon completion
of all review proceedings and the issuance of a final order confirming
the penalty in whole or in part.
(4) If the amount of any penalty is not paid within thirty days
after it becomes due and payable, the attorney general, upon the
request of the director, shall bring an action in the name of the state
of Washington in the superior court of Thurston county or of any county
in which such violator may do business, to recover such penalty. In
all such actions the procedure and rules of evidence shall be the same
as an ordinary civil action. All penalties recovered under this
section shall be paid into the state's general fund.
(i) Constructs any form of hydraulic project or performs other work
on a hydraulic project that requires a hydraulic project approval under
this chapter and fails to have a hydraulic project approval for the
construction or work;
(ii) Violates any requirements or conditions of the hydraulic
project approval for the construction or other activities; or
(iii) Violates any department rule that identifies the conditions
under which a hydraulic project is approved.
(b) A compliance notice may be issued under this section to inform
a person of a potential violation and recommend actions to prevent,
correct, or mitigate for adverse impacts to fish life. A notice to
comply must:
(i) Be served upon the person and any known agents and applicants;
(ii) Specify the nature, extent, date, and time of the potential
violation; and
(iii) Specify any recommended actions to prevent, correct, or
mitigate for adverse impacts to fish life.
(c) A compliance order issued under this section must specify
measures or actions necessary to prevent, correct, or mitigate for
adverse impacts to fish life. A compliance order is effective
immediately and remains in effect until withdrawn by the director or
until the board orders otherwise. A compliance order must:
(i) Be served upon the person and any known agents;
(ii) Specify the nature, extent, date, and time of the violation;
(iii) Include specific measures or actions necessary to prevent,
correct, or mitigate for adverse impacts to fish life;
(iv) Specify any necessary action before work may resume; and
(v) Specify the right of the person to an appeal.
(d) Within thirty days from the date of receipt of a compliance
order issued under this section, a person may file a written request
appealing the notice or order to the board.
(e) A compliance order may be informally appealed to the department
within thirty days from the date of receipt of the decision. Requests
for informal appeals must be filed in the form and manner prescribed by
the department by rule. A compliance order that has been informally
appealed to the department is appealable to the board within thirty
days from the date of receipt of the department's decision on the
informal appeal.
(2)(a) Consistent with the penalty schedule described in this
subsection, the director may levy civil penalties of up to:
(i) Two thousand five hundred dollars for a violation of this
chapter or rules adopted under this chapter relating to a hydraulic
project categorized or that is categorized by the department as a low
complexity hydraulic project;
(ii) Five thousand dollars for a violation of this chapter or rules
adopted under this chapter relating to a hydraulic project categorized
or that is categorized by the department as a medium complexity
hydraulic project; and
(iii) Ten thousand dollars for a violation of this chapter or rules
adopted under this chapter for a hydraulic project categorized by the
department as a high complexity hydraulic project.
(b) Each and every violation of this chapter or rules adopted under
this chapter is a separate and distinct civil offense.
(c) The penalty provided must be imposed by notice in writing by
the director describing the violation. The civil penalty notice must
specify the:
(i) Basis for the penalty and the amount levied; and
(ii) Right of the person to an appeal of the underlying violation
and the amount charged.
(d) Within thirty days from the date of receipt of a civil penalty
order issued under this section, a person may file a written request
appealing the order to the board.
(e) Issuance of a civil penalty may be informally appealed to the
department within thirty days from the date of receipt of the penalty.
Requests for informal appeal must be filed in the form and manner
prescribed by the department by rule. A civil penalty that has been
informally appealed to the department is appealable to the board within
thirty days from the date of receipt of the department's decision on
the informal appeal.
(f) The penalty imposed becomes due and payable thirty days after
receipt of a notice imposing the penalty unless an appeal is filed.
Whenever an appeal of any penalty incurred under this chapter is filed,
the penalty becomes due and payable only upon completion of all
administrative and judicial review proceedings and the issuance of a
final decision confirming the penalty in whole or in part. When the
penalty becomes past due, it is also subject to interest at the rate
allowed by RCW 43.17.240 for debts owed to the state.
(g) If the amount of any penalty is not paid within thirty days
after it becomes due and payable, the attorney general, upon the
request of the director, shall bring an action in the name of the state
of Washington in the superior court of Thurston county or of any county
in which the violator may do business, to recover the penalty. In all
such actions, the procedure and rules of evidence are the same as an
ordinary civil action. The department is also entitled to recover
reasonable attorneys' fees and costs incurred in connection with the
penalty.
(h) The director shall establish by rule a penalty schedule. The
schedule must be developed in consideration of the following:
(i) Previous violation history;
(ii) Severity of the impact on fish and fish habitat;
(iii) Whether the violation of this chapter or its rules was
intentional;
(iv) Cooperation with the department;
(v) Reparability of the adverse effect from the violation; and
(vi) The extent to which a penalty to be imposed on a person for a
violation committed by another should be reduced if the person was
unaware of the violation and has not received a substantial economic
benefit from the violation.
(3) When receiving or recovering a penalty under this section, the
department may deposit an amount not to exceed its costs incurred in
connection with processing and recovering the penalty into the
hydraulic project approval account created in section 105 of this act.
The department shall deposit the remainder of the penalty recovered
into the general fund.
(4) The director may apply for an administrative inspection warrant
in either Thurston county superior court or the superior court in the
county where the project is located. The court may issue an
administrative inspection warrant where:
(a) Department personnel need to inspect the project site to ensure
that a person:
(i) Possesses a hydraulic project approval required under this
chapter for the construction of any form of hydraulic project or
performance of other work on a hydraulic project;
(ii) Complies with any requirements or conditions of the hydraulic
project approval for the construction or other activities;
(iii) Complies with any compliance order issued under subsection
(1) of this section; or
(iv) Complies with any department rule that identifies the
conditions under which a hydraulic project is approved; or
(b) Department personnel have reasonable cause to believe that a
person:
(i) Is constructing or has constructed any form of hydraulic
project or performs other work on a hydraulic project and fails to have
a hydraulic project approval required under this chapter for the
construction or work;
(ii) Is violating or has violated any requirements or conditions of
the hydraulic project approval for the construction or other
activities;
(iii) Is violating or has violated any compliance order issued
under subsection (1) of this section; or
(iv) Is violating or has violated any department rule that
identifies the conditions under which a hydraulic project is approved.
(5) The director may only delegate the authority to issue a
compliance order or levy a civil penalty under this section to
department personnel who report directly to the director.
(6) On and after the effective date of section 202 of this act,
nothing in this section applies to a forest practices hydraulic project
included in an approved forest practices application or to any
activities that are associated with such a project.
NEW SECTION. Sec. 109 (1) By January 1, 2013, the department of
fish and wildlife must adopt rules to carry out the changes made under
section 106 of this act to marina or marine terminal general
amendments, including best management practices and other requirements
for these permits.
(2) This section expires July 31, 2014.
NEW SECTION. Sec. 110 A new section is added to chapter 77.55
RCW to read as follows:
The department shall prepare and distribute technical and
educational information to the general public to assist the public in
complying with the requirements of this chapter, including the changes
resulting from this act.
NEW SECTION. Sec. 111 A new section is added to chapter 77.55
RCW to read as follows:
The department shall develop a system to provide local governments,
affected tribes, and other interested parties with access to hydraulic
project approval applications.
NEW SECTION. Sec. 112 The director of fish and wildlife shall
adopt any rules required or deemed necessary to implement RCW
77.55.011, 77.55.021, 77.55.151, 77.55.231, and sections 103 through
105, 110, and 111 of this act.
NEW SECTION. Sec. 201 A new section is added to chapter 77.55
RCW to read as follows:
(1) The requirements of this chapter do not apply to any forest
practices hydraulic project, or to any activities that are associated
with such a project, upon incorporation of fish protection standards
adopted under this chapter into the forest practices rules and approval
of technical guidance as required under RCW 76.09.040, at which time
these projects are regulated under chapter 76.09 RCW.
(2) The department must continue to conduct regulatory and
enforcement activities under this chapter for forest practices
hydraulic projects until the forest practices board incorporates fish
protection standards adopted under this chapter into the forest
practices rules and approves technical guidance as required under RCW
76.09.040.
(3) By December 31, 2013, the department shall adopt rules
establishing the form and procedures for the concurrence review process
consistent with section 202 of this act. The concurrence review
process must allow the department up to thirty days to review forest
practices hydraulic projects meeting the criteria under section 202(2)
(a) and (b) of this act for consistency with fish protection standards.
(4) The department shall notify the department of natural resources
prior to beginning a rule-making process that may affect activities
regulated under chapter 76.09 RCW.
(5) The department shall act consistent with appendix M of the
forest and fish report, as the term "forests and fish report" is
defined in RCW 76.09.020, when modifying fish protection rules that may
affect activities regulated under chapter 76.09 RCW.
(6) The department may review and provide comments on any forest
practices application. Prior to commenting and whenever reasonably
practicable, the department shall communicate with the applicant
regarding the substance of the project.
(7) The department shall participate in effectiveness monitoring
for forest practices hydraulic projects through its role in the review
processes provided under WAC 222-08-160 as it existed on the effective
date of this section.
NEW SECTION. Sec. 202 A new section is added to chapter 76.09
RCW to read as follows:
(1) The department may request information and technical assistance
from the department of fish and wildlife regarding any forest practices
hydraulic project regulated under this chapter.
(2) A concurrence review process is established for certain forest
practices hydraulic projects, as follow:
(a) Prior to submitting an application to the department under RCW
76.09.050 that includes a forest practices hydraulic project involving
one or more water crossing structures meeting the criteria of (b) of
this subsection, the applicant shall submit water crossing structure
plans and specifications to the department of fish and wildlife for
concurrence review consistent with section 201(3) of this act.
(b) The concurrence review process applies only to:
(i) Culvert installation or replacement, and repair at or below the
bankfull width, as that term is defined in WAC 222-16-010 on the
effective date of this section, in fish bearing rivers and streams that
exceed five percent gradient;
(ii) Bridge construction or replacement, and repair at or below the
bankfull width, of fish bearing unconfined streams; or
(iii) Fill within the flood level - 100 year, as that term is
defined in WAC 222-16-010, as it existed on the effective date of this
section, of fish bearing unconfined streams.
(c) When submitting an application to the department under RCW
76.09.050, the applicant shall attach the following to the application:
(i) The concurrence review form issued by the department of fish
and wildlife under section 201 of this act; and
(ii) Plans and specifications for each water crossing structure
subject to concurrence review.
Sec. 203 RCW 76.09.040 and 2010 c 188 s 4 are each amended to
read as follows:
(1)(a) 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:
(i) Establish minimum standards for forest practices;
(ii) Provide procedures for the voluntary development of resource
management plans which may be adopted as an alternative to the minimum
standards in (a)(i) 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;
(iii) Set forth necessary administrative provisions;
(iv) Establish procedures for the collection and administration of
forest practice fees as set forth by this chapter; and
(v) Allow for the development of watershed analyses.
(b) 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)) to these rules. All other forest
practices rules shall be adopted by the board.
(c) 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)(a) The board shall prepare proposed forest practices rules
consistent with this section and chapter 34.05 RCW. 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 proposed
forest practices rules relating to water quality protection.
(b)(i) ((Prior to initiating the rule-making process, the proposed
rules shall be submitted for review and comments to the department of
fish and wildlife and to the counties of the state. After receipt of
the proposed forest practices rules, the department of fish and
wildlife 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.)) The board
((
(ii) After the expiration of the thirty day period,and the department of ecology)) shall ((jointly)) hold one or more
hearings on the proposed rules pursuant to chapter 34.05 RCW. Any
county representative may propose specific forest practices rules
relating to problems existing within the county at the hearings.
(((iii))) (ii) 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)(a) The board shall incorporate into the forest practices rules
those fish protection standards in the rules adopted under chapter
77.55 RCW, as the rules existed on the effective date of this section,
that are applicable to activities regulated under the forest practices
rules. If fish protection standards are incorporated by reference, the
board shall minimize administrative processes by utilizing the
exception from the administrative procedures controlling significant
legislative rules under RCW 34.05.328(5)(b)(iii) for the incorporation
of rules adopted by other state agencies.
(b) Thereafter, the board shall incorporate into the forest
practices rules any changes to those fish protection standards in the
rules adopted under chapter 77.55 RCW that are: (i) Adopted consistent
with section 201 of this act; and (ii) applicable to activities
regulated under the forest practices rules. If fish protection
standards are incorporated by reference, the board shall minimize
administrative processes by utilizing the exception from the
administrative procedures controlling significant legislative rules
under RCW 34.05.328(5)(b)(iii) for the incorporation of rules adopted
by other state agencies.
(c) The board shall establish and maintain technical guidance in
the forest practices board manual, as provided under WAC 222-12-090 as
it existed on the effective date of this section, to assist with
implementation of the standards incorporated into the forest practices
rules under this section. The guidance must include best management
practices and standard techniques to ensure fish protection.
(d) The board must complete the requirements of (a) of this
subsection and establish initial technical guidance under (c) of this
subsection by December 31, 2013.
(4)(a) 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:
(i) 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;
(ii) 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)(i) 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.
(b) 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.
(c) Instead of offering to sell interests in qualifying lands,
owners may elect to donate the interests to the state.
(d) Any acquired interest in qualifying lands by the state under
this section shall be managed as riparian open space or critical
habitat.
NEW SECTION. Sec. 204 A new section is added to chapter 77.55
RCW to read as follows:
(1) The department and the department of natural resources shall
enter into and maintain a memorandum of agreement between the two
agencies that describes how to implement integration of hydraulic
project approvals into forest practices applications consistent with
this act.
(2) The initial memorandum of agreement between the two departments
must be executed by December 31, 2012. The memorandum of agreement may
be amended as agreed to by the two departments.
Sec. 205 RCW 76.09.050 and 2011 c 207 s 1 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 forest lands that are being converted to another use;
(b) ((Which require approvals under the provisions of the
hydraulics act, RCW 77.55.021;)) Within "shorelines of the state" as defined in RCW 90.58.030;
(c)
(((d))) (c) Excluded from Class II by the board; or
(((e))) (d) 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 forest lands that are being converted to another use;
(b) 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;
(c) That involve timber harvesting or road construction on forest
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 or 84.34 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
(d) 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)) except that
the department must: Approve or disapprove an application within sixty
calendar days from the date the department receives the application if
the department determines that a detailed statement must be made,
unless the commissioner of public lands, through the promulgation of a
formal order, determines that the process cannot be completed within
such a 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 forest lands that 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 (b) 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 76.09.205. 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. 206 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 practices 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) For an application or notification submitted on or after the
effective date of section 202 of this act that includes a forest
practices hydraulic project, plans and specifications for the forest
practices hydraulic project to ensure the proper protection of fish
life;
(g) 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))) (h) Soil, geological, and hydrological data with respect to
forest practices;
(((h))) (i) The expected dates of commencement and completion of
all forest practices specified in the application;
(((i))) (j) Provisions for continuing maintenance of roads and
other construction or other measures necessary to afford protection to
public resources;
(((j))) (k) An affirmation that the statements contained in the
notification or application are true; and
(((k))) (l) 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)(a) 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)) three 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)).
(b) A notification or application may be renewed for an additional
three-year term by the filing and approval of a notification or
application, as applicable, prior to the expiration of the original
application or notification. A renewal application or notification is
subject to the forest practices rules in effect at the time the renewal
application or notification is filed. Nothing in this section
precludes the applicant from applying for a new application or
notification after the renewal period has lapsed.
(c) 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)) three years.
(d) 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)) three 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)) The department may require the applicant to provide
advance notice before commencing operations on an approved application
or notification.
(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. 207 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, including forest practices rules incorporated
under RCW 76.09.040(3), and to ensure that no material damage occurs to
the natural resources of this state as a result of ((such)) forest
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.
NEW SECTION. Sec. 208 A new section is added to chapter 43.30
RCW to read as follows:
(1) By December 31, 2013, the department must make examples of
complete, high quality forest practices applications and the resulting
approvals readily available to the public on its internet site, as well
as the internet site of the office of regulatory assistance established
in RCW 43.42.010. The department must maximize assistance to the
public and interested parties by seeking to make readily available
examples from forest practices that generate significant permitting
activity or frequent questions.
(2) The department must regularly review and update the examples
required to be made available on the internet under subsection (1) of
this section.
(3) The department must obtain the written permission of an
applicant before making publicly available that applicant's application
or approval under this section and must work cooperatively with the
applicant to ensure that no personal or proprietary information is made
available.
Sec. 209 RCW 76.09.065 and 2000 c 11 s 5 are each amended to read
as follows:
(1) ((Effective July 1, 1997,)) An applicant shall pay an
application fee ((and a recording fee)), if applicable, at the time an
application or notification is submitted to the department or to the
local governmental entity as provided in this chapter.
(2) ((For applications and notifications submitted to the
department, the application fee)) (a) If sections 201 through 203 and
206 of this act are not enacted into law by June 30, 2012, then the fee
for applications and notifications submitted to the department shall be
fifty dollars for class II, III, and IV forest practices applications
or notifications relating to the commercial harvest of timber.
However, the fee shall be five hundred dollars for class IV forest
practices applications on lands being converted to other uses or on
lands which are not to be reforested because of the likelihood of
future conversion to urban development or on lands that are contained
within "urban growth areas," designated pursuant to chapter 36.70A RCW,
except the fee shall be fifty dollars on those lands where the forest
landowner provides:
(((a))) (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
(((b))) (ii) A conversion option harvest plan approved by the local
governmental entity and submitted to the department as part of the
forest practices application.
(b)(i) If sections 201 through 203 and 206 of this act are enacted
into law by June 30, 2012, then the fee for applications and
notifications relating to the commercial harvest of timber submitted to
the department shall be one hundred fifty dollars for class II
applications and notifications, class III applications, and class IV
forest practices that 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. The fee shall be
one thousand five hundred dollars for class IV forest practices
applications on lands being converted to other uses or on lands that
are not to be reforested because of the likelihood of future conversion
to urban development or on lands that are contained within urban growth
areas, designated pursuant to chapter 36.70A RCW, except the fee shall
be the same as for a class III forest practices application where the
forest landowner provides:
(A) 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
(B) A conversion option harvest plan approved by the local
governmental entity and submitted to the department as part of the
forest practices application.
(ii) If the board has not incorporated fish protection standards
adopted under chapter 77.55 RCW into the forest practices rules and
approved technical guidance as required under RCW 76.09.040 by December
31, 2013, the fee for applications and notifications submitted to the
department shall be as provided under (a) of this subsection until the
rules are adopted and technical guidance approved.
(3) The forest practices application account is created in the
state treasury. Moneys in the account may be spent only after
appropriation. All money collected from fees under ((this)) subsection
(2) of this section shall be deposited in the ((state general fund))
forest practices application account for the purposes of implementing
this chapter, chapter 76.13 RCW, and Title 222 WAC.
(((3))) (4) For applications submitted to ((the)) a local
governmental entity as provided in this chapter, the fee shall be
((five hundred dollars for class IV forest practices on lands being
converted to other uses or lands that are contained within "urban
growth areas," designated pursuant to chapter 36.70A RCW, except as
otherwise provided in this section, unless a different fee is otherwise
provided)) determined, collected, and retained by the local
governmental entity.
(((4) Recording fees shall be as provided in chapter 36.18 RCW.))
(5) An application fee under subsection (2) of this section shall
be refunded or credited to the applicant if either the application or
notification is disapproved by the department or the application or
notification is withdrawn by the applicant due to restrictions imposed
by the department.
Sec. 210 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)), and submit a new
application for the conversion. The fee for a new application for
conversion under this subsection (1)(c) is the difference between the
applicable fee for the new application under RCW 76.09.065 and the fee
previously paid for the original application or notification, which
must be deposited in the forest practices application account created
in RCW 76.09.065.
(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.
Sec. 211 RCW 76.09.030 and 2008 c 46 s 1 are each amended to read
as follows:
(1) There is hereby created the forest practices board of the state
of Washington as an agency of state government consisting of members as
follows:
(a) The commissioner of public lands or the commissioner's
designee;
(b) The director of the department of ((community, trade, and
economic development)) commerce or the director's designee;
(c) The director of the department of agriculture or the director's
designee;
(d) The director of the department of ecology or the director's
designee;
(e) The director of the department of fish and wildlife or the
director's designee;
(f) An elected member of a county legislative authority appointed
by the governor((: PROVIDED, That such)). However, the county
member's service on the board shall be conditioned on the member's
continued service as an elected county official;
(g) One member representing a timber products union, appointed by
the governor from a list of three names submitted by a timber labor
coalition affiliated with a statewide labor organization that
represents a majority of the timber product unions in the state; and
(h) Six members of the general public appointed by the governor,
one of whom shall be a small forest landowner who actively manages his
or her land, and one of whom shall be an independent logging
contractor.
(2) ((The director of the department of fish and wildlife's service
on the board may be terminated two years after August 18, 1999, if the
legislature finds that after two years the department has not made
substantial progress toward integrating the laws, rules, and programs
governing forest practices, chapter 76.09 RCW, and the laws, rules, and
programs governing hydraulic projects, chapter 77.55 RCW. Such a
finding shall be based solely on whether the department of fish and
wildlife makes substantial progress as defined in this subsection, and
will not be based on other actions taken as a member of the board.
Substantial progress shall include recommendations to the legislature
for closer integration of the existing rule-making authorities of the
board and the department of fish and wildlife, and closer integration
of the forest practices and hydraulics permitting processes, including
exploring the potential for a consolidated permitting process. These
recommendations shall be designed to resolve problems currently
associated with the existing dual regulatory and permitting processes.)) The members of the initial board appointed by the governor
shall be appointed so that the term of one member shall expire December
31, 1975, the term of one member shall expire December 31, 1976, the
term of one member shall expire December 31, 1977, the terms of two
members shall expire December 31, 1978, and the terms of two members
shall expire December 31, 1979. Thereafter, each member shall be
appointed for a term of four years. Vacancies on the board shall be
filled in the same manner as the original appointments. Each member of
the board shall continue in office until his or her successor is
appointed and qualified. The commissioner of public lands or the
commissioner's designee shall be the chair of the board.
(3)
(((4))) (3) The board shall meet at such times and places as shall
be designated by the chair or upon the written request of the majority
of the board. The principal office of the board shall be at the state
capital.
(((5))) (4) Members of the board, except public employees and
elected officials, shall be compensated in accordance with RCW
43.03.250. Each member shall be entitled to reimbursement for travel
expenses incurred in the performance of their duties as provided in RCW
43.03.050 and 43.03.060.
(((6))) (5) The board may employ such clerical help and staff
pursuant to chapter 41.06 RCW as is necessary to carry out its duties.
Sec. 212 RCW 76.09.020 and 2010 c 210 s 19 and 2010 c 188 s 6 are
each reenacted and amended to read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Adaptive management" means reliance on scientific methods to
test the results of actions taken so that the management and related
policy can be changed promptly and appropriately.
(2) "Appeals board" means the pollution control hearings board
created by RCW 43.21B.010.
(3) "Application" means the application required pursuant to RCW
76.09.050.
(4) "Aquatic resources" includes water quality, salmon, other
species of the vertebrate classes Cephalaspidomorphi and Osteichthyes
identified in the forests and fish report, the Columbia torrent
salamander (Rhyacotriton kezeri), the Cascade torrent salamander
(Rhyacotriton cascadae), the Olympic torrent salamander (Rhyacotriton
olympian), the Dunn's salamander (Plethodon dunni), the Van Dyke's
salamander (Plethodon vandyke), the tailed frog (Ascaphus truei), and
their respective habitats.
(5) "Board" means the forest practices board created in RCW
76.09.030.
(6) "Commissioner" means the commissioner of public lands.
(7) "Contiguous" means land adjoining or touching by common corner
or otherwise. Land having common ownership divided by a road or other
right-of-way shall be considered contiguous.
(8) "Conversion to a use other than commercial timber operation"
means a bona fide conversion to an active use which is incompatible
with timber growing and as may be defined by forest practices rules.
(9) "Date of receipt" has the same meaning as defined in RCW
43.21B.001.
(10) "Department" means the department of natural resources.
(11) "Ecosystem services" means the benefits that the public enjoys
as a result of natural processes and biological diversity.
(12) "Ecosystem services market" means a system in which providers
of ecosystem services can access financing or market capital to
protect, restore, and maintain ecological values, including the full
spectrum of regulatory, quasiregulatory, and voluntary markets.
(13) "Fish passage barrier" means any artificial instream structure
that impedes the free passage of fish.
(14) "Forest land" means all land which is capable of supporting a
merchantable stand of timber and is not being actively used for a use
which is incompatible with timber growing. Forest land does not
include agricultural land that is or was enrolled in the conservation
reserve enhancement program by contract if such agricultural land was
historically used for agricultural purposes and the landowner intends
to continue to use the land for agricultural purposes in the future.
As it applies to the operation of the road maintenance and abandonment
plan element of the forest practices rules on small forest landowners,
the term "forest land" excludes:
(a) Residential home sites, which may include up to five acres; and
(b) Cropfields, orchards, vineyards, pastures, feedlots, fish pens,
and the land on which appurtenances necessary to the production,
preparation, or sale of crops, fruit, dairy products, fish, and
livestock exist.
(15) "Forest landowner" means any person in actual control of
forest land, whether such control is based either on legal or equitable
title, or on any other interest entitling the holder to sell or
otherwise dispose of any or all of the timber on such land in any
manner. However, any lessee or other person in possession of forest
land without legal or equitable title to such land shall be excluded
from the definition of "forest landowner" unless such lessee or other
person has the right to sell or otherwise dispose of any or all of the
timber located on such forest land.
(16) "Forest practice" means any activity conducted on or directly
pertaining to forest land and relating to growing, harvesting, or
processing timber, including but not limited to:
(a) Road and trail construction, including forest practices
hydraulic projects that include water crossing structures, and
associated activities and maintenance;
(b) Harvesting, final and intermediate;
(c) Precommercial thinning;
(d) Reforestation;
(e) Fertilization;
(f) Prevention and suppression of diseases and insects;
(g) Salvage of trees; and
(h) Brush control.
"Forest practice" shall not include preparatory work such as tree
marking, surveying and road flagging, and removal or harvesting of
incidental vegetation from forest lands such as berries, ferns,
greenery, mistletoe, herbs, mushrooms, and other products which cannot
normally be expected to result in damage to forest soils, timber, or
public resources.
(17) "Forest practices rules" means any rules adopted pursuant to
RCW 76.09.040.
(18) "Forest road," as it applies to the operation of the road
maintenance and abandonment plan element of the forest practices rules
on small forest landowners, means a road or road segment that crosses
land that meets the definition of forest land, but excludes residential
access roads.
(19) "Forest trees" does not include hardwood trees cultivated by
agricultural methods in growing cycles shorter than fifteen years if
the trees were planted on land that was not in forest use immediately
before the trees were planted and before the land was prepared for
planting the trees. "Forest trees" includes Christmas trees, but does
not include Christmas trees that are cultivated by agricultural
methods, as that term is defined in RCW 84.33.035.
(20) "Forests and fish report" means the forests and fish report to
the board dated April 29, 1999.
(21) "Operator" means any person engaging in forest practices
except an employee with wages as his or her sole compensation.
(22) "Person" means any individual, partnership, private, public,
or municipal corporation, county, the department or other state or
local governmental entity, or association of individuals of whatever
nature.
(23) "Public resources" means water, fish and wildlife, and in
addition shall mean capital improvements of the state or its political
subdivisions.
(24) "Small forest landowner" has the same meaning as defined in
RCW 76.09.450.
(25) "Timber" means forest trees, standing or down, of a commercial
species, including Christmas trees. However, "timber" does not include
Christmas trees that are cultivated by agricultural methods, as that
term is defined in RCW 84.33.035.
(26) "Timber owner" means any person having all or any part of the
legal interest in timber. Where such timber is subject to a contract
of sale, "timber owner" shall mean the contract purchaser.
(27) "Unconfined channel migration zone" means the area within
which the active channel of an unconfined stream is prone to move and
where the movement would result in a potential near-term loss of
riparian forest adjacent to the stream. Sizeable islands with
productive timber may exist within the zone.
(28) "Unconfined stream" means generally fifth order or larger
waters that experience abrupt shifts in channel location, creating a
complex floodplain characterized by extensive gravel bars, disturbance
species of vegetation of variable age, numerous side channels, wall-based channels, oxbow lakes, and wetland complexes. Many of these
streams have dikes and levees that may temporarily or permanently
restrict channel movement.
(29) "Forest practices hydraulic project" means a hydraulic
project, as defined under RCW 77.55.011, that requires a forest
practices application or notification under this chapter.
(30) "Fill" means the placement of earth material or aggregate for
road or landing construction or other similar activities.
NEW SECTION. Sec. 213 A new section is added to chapter 43.21C
RCW to read as follows:
The incorporation of fish protection standards adopted under
chapter 77.55 RCW into the forest practices rules as required under RCW
76.09.040(3) is exempt from compliance with this chapter.
NEW SECTION. Sec. 214 (1) The departments of natural resources
and fish and wildlife must jointly provide a report to the appropriate
committees of the legislature containing findings and any
recommendations relating to the regulatory integration of hydraulic
projects and forest practices as provided in this act, including:
(a) Progress made in implementing the integration required under
this act, including rule incorporation and development of forest
practices board manual guidance;
(b) An update on and potential for permitting efficiencies in
addition to the integration required under this act;
(c) The process for and outcomes from review of forest practices
applications that include forest practices hydraulic projects by the
department of fish and wildlife; and
(d) Compliance monitoring for forest practices hydraulic projects
through the review processes provided under WAC 222-08-160 as it
existed on the effective date of this section.
(2) The departments of natural resources and fish and wildlife must
provide an initial report by September 1, 2014, and a second report by
September 1, 2016.
(3) This section expires December 31, 2016.
NEW SECTION. Sec. 215 Sections 202 and 205 of this act take
effect on the date the forest practices board incorporates fish
protection standards adopted under chapter 77.55 RCW into the forest
practices rules and approves technical guidance as required under RCW
76.09.040. The department of natural resources must provide written
notice of the effective date of these sections to affected parties, the
chief clerk of the house of representatives, the secretary of the
senate, the office of the code reviser, and others as deemed
appropriate by the department of natural resources.
NEW SECTION. Sec. 216 Nothing in this act affects any rules,
processes, or procedures of the department of fish and wildlife and the
department of natural resources existing on the effective date of this
section that provide for regulatory integration of hydraulic projects
and forest practices for projects in nonfish-bearing waters.
NEW SECTION. Sec. 217 Nothing in this act authorizes the
department of fish and wildlife to assume authority over approval,
disapproval, conditioning, or enforcement of applications or
notifications submitted under chapter 76.09 RCW.
NEW SECTION. Sec. 218 Nothing in this act affects the
jurisdiction or other authority of a federally recognized Indian tribe
within the boundary of its reservation or on other tribally owned
lands.
NEW SECTION. Sec. 219 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 301 (1) The legislature recognizes that the
rule-based categorical exemption thresholds to chapter 43.21C RCW,
found in WAC 197-11-800, have not been updated in recent years, and
should be reviewed in light of the increased environmental protections
in place under chapters 36.70A and 90.58 RCW, and other laws. It is
the intent of the legislature to direct the department of ecology to
conduct two phases of rule making over the next two years to increase
the thresholds for these categorical exemptions.
(2) By December 31, 2012, the department of ecology shall increase
the rule-based categorical exemptions to chapter 43.21C RCW found in
WAC 197-11-800 and update the environmental checklist found in WAC 197-11-960. In updating the categorical exemptions, the department of
ecology must:
(a) At a minimum, increase the existing maximum threshold levels
for the following project types:
(i) The construction or location of single-family residential
developments;
(ii) The construction or location of multifamily residential
developments;
(iii) The construction of an agricultural structure, other than a
feed lot, that is similar to the following: A barn, a loafing shed, a
farm equipment storage building, or a produce storing or packing
structure;
(iv) The construction of the following, including any associated
parking areas or facilities: An office, a school, a commercial
building, a recreational building, a service building, or a storage
building;
(v) Landfilling or excavation activities; and
(vi) The installation of an electric facility, lines, equipment, or
appurtenances, other than substations.
(b) Establish maximum exemption levels for action types that differ
based on whether the project is proposed to occur in:
(i) An incorporated city;
(ii) An unincorporated area within an urban growth area;
(iii) An unincorporated area outside of an urban growth area but
within a county planning under chapter 36.70A RCW; or
(iv) An unincorporated area within a county not planning under
chapter 36.70A RCW.
(c) In updating the environmental checklist found in WAC 197-11-960, the department of ecology shall:
(i) Improve efficiency of the environmental checklist; and
(ii) Not include any new subjects into the scope of the checklist,
including climate change and greenhouse gases.
(d) Until the completion of the rule making required under this
section, a city or county may apply the highest categorical exemption
levels authorized under WAC 197-11-800 to any action, regardless if the
city or county with jurisdiction has exercised its authority to raise
the exemption levels above the established minimums, unless the city or
county with jurisdiction passes an ordinance or resolution that lowers
the exemption levels to a level below the allowed maximum but not less
than the default minimum levels detailed in WAC 197-11-800.
(3)(a) By December 31, 2013, the department of ecology shall:
(i) Update, but not decrease, the thresholds for all other project
actions not specified in subsection (2) of this section;
(ii) Propose methods for integrating the state environmental policy
act process with provisions of the growth management act, chapter
36.70A RCW, including consideration of ways to revise WAC 197-11-210
through 197-11-232 to further the goals of RCW 43.21C.240; and
(iii) Create categorical exemptions for minor code amendments for
which review under chapter 43.21C RCW would not be required because
they do not lessen environmental protection.
(b) During this process, the department of ecology may also review
and update the thresholds resulting from the 2012 rule-making process
outlined in subsection (2) of this section.
(4)(a) The department of ecology shall convene an advisory
committee consisting of members representing, at minimum, cities,
counties, business interests, environmental interests, agricultural
interests, cultural resources interests, state agencies, and tribal
governments to:
(i) Assist in updating the environmental checklist and updating the
thresholds for other project actions for both rule-making processes
under subsections (2) and (3) of this section;
(ii) Ensure that state agencies and other interested parties can
receive notice about projects of interest through notice under chapter
43.21C RCW and means other than chapter 43.21C RCW; and
(iii) Ensure that federally recognized tribes receive notice about
projects that impact tribal interests through notice under chapter
43.21C RCW and means other than chapter 43.21C RCW.
(b) Advisory committee members must have direct experience with the
implementation or application of the state environmental policy act.
(5) This section expires July 31, 2014.
Sec. 302 RCW 43.21C.031 and 1995 c 347 s 203 are each amended to
read as follows:
(1) An environmental impact statement (the detailed statement
required by RCW 43.21C.030(2)(c)) shall be prepared on proposals for
legislation and other major actions having a probable significant,
adverse environmental impact. The environmental impact statement may
be combined with the recommendation or report on the proposal or issued
as a separate document. The substantive decisions or recommendations
shall be clearly identifiable in the combined document. Actions
categorically exempt under RCW 43.21C.110(1)(a) and section 307 of this
act do not require environmental review or the preparation of an
environmental impact statement under this chapter. ((In a county,
city, or town planning under RCW 36.70A.040, a planned action, as
provided for in subsection (2) of this section, does not require a
threshold determination or the preparation of an environmental impact
statement under this chapter, but is subject to environmental review
and mitigation as provided in this chapter.))
(2) An environmental impact statement is required to analyze only
those probable adverse environmental impacts which are significant.
Beneficial environmental impacts may be discussed. The responsible
official shall consult with agencies and the public to identify such
impacts and limit the scope of an environmental impact statement. The
subjects listed in RCW 43.21C.030(2)(c) need not be treated as separate
sections of an environmental impact statement. Discussions of
significant short-term and long-term environmental impacts, significant
irrevocable commitments of natural resources, significant alternatives
including mitigation measures, and significant environmental impacts
which cannot be mitigated should be consolidated or included, as
applicable, in those sections of an environmental impact statement
where the responsible official decides they logically belong.
(((2)(a) For purposes of this section, a planned action means one
or more types of project action that:))
(i) Are designated planned actions by an ordinance or resolution
adopted by a county, city, or town planning under RCW 36.70A.040;
(ii) Have had the significant impacts adequately addressed in an
environmental impact statement prepared in conjunction with (A) a
comprehensive plan or subarea plan adopted under chapter 36.70A RCW, or
(B) a fully contained community, a master planned resort, a master
planned development, or a phased project;
(iii) Are subsequent or implementing projects for the proposals
listed in (a)(ii) of this subsection;
(iv) Are located within an urban growth area, as defined in RCW
36.70A.030;
(v) Are not essential public facilities, as defined in RCW
36.70A.200; and
(vi) Are consistent with a comprehensive plan adopted under chapter
36.70A RCW.
(b) A county, city, or town shall limit planned actions to certain
types of development or to specific geographical areas that are less
extensive than the jurisdictional boundaries of the county, city, or
town and may limit a planned action to a time period identified in the
environmental impact statement or the ordinance or resolution adopted
under this subsection.
NEW SECTION. Sec. 303 A new section is added to chapter 43.21C
RCW to read as follows:
(1) For purposes of this chapter, a planned action means one or
more types of development or redevelopment that meet the following
criteria:
(a) Are designated as planned actions by an ordinance or resolution
adopted by a county, city, or town planning under RCW 36.70A.040;
(b) Have had the significant impacts adequately addressed in an
environmental impact statement under the requirements of this chapter
in conjunction with, or to implement, a comprehensive plan or subarea
plan adopted under chapter 36.70A RCW, or a fully contained community,
a master planned resort, a master planned development, or a phased
project;
(c) Have had project level significant impacts adequately addressed
in an environmental impact statement unless the impacts are
specifically deferred for consideration at the project level pursuant
to subsection (3)(b) of this section;
(d) Are subsequent or implementing projects for the proposals
listed in (b) of this subsection;
(e) Are located within an urban growth area designated pursuant to
RCW 36.70A.110;
(f) Are not essential public facilities, as defined in RCW
36.70A.200, unless an essential public facility is accessory to or part
of a residential, office, school, commercial, recreational, service, or
industrial development that is designated a planned action under this
subsection; and
(g) Are consistent with a comprehensive plan or subarea plan
adopted under chapter 36.70A RCW.
(2) A county, city, or town shall define the types of development
included in the planned action and may limit a planned action to:
(a) A specific geographic area that is less extensive than the
jurisdictional boundaries of the county, city, or town; or
(b) A time period identified in the ordinance or resolution adopted
under this subsection.
(3)(a) A county, city, or town shall determine during permit review
whether a proposed project is consistent with a planned action
ordinance adopted by the jurisdiction. To determine project
consistency with a planned action ordinance, a county, city, or town
may utilize a modified checklist pursuant to the rules adopted to
implement RCW 43.21C.110, a form that is designated within the planned
action ordinance, or a form contained in agency rules adopted pursuant
to RCW 43.21C.120.
(b) A county, city, or town is not required to make a threshold
determination and may not require additional environmental review, for
a proposal that is determined to be consistent with the development or
redevelopment described in the planned action ordinance, except for
impacts that are specifically deferred to the project level at the time
of the planned action ordinance's adoption. At least one community
meeting must be held before the notice is issued for the planned action
ordinance. Notice for the planned action and notice of the community
meeting required by this subsection (3)(b) must be mailed or otherwise
verifiably provided to: (i) All affected federally recognized tribal
governments; and (ii) agencies with jurisdiction over the future
development anticipated for the planned action. The determination of
consistency, and the adequacy of any environmental review that was
specifically deferred, are subject to the type of administrative appeal
that the county, city, or town provides for the proposal itself
consistent with RCW 36.70B.060.
(4) For a planned action ordinance that encompasses the entire
jurisdictional boundary of a county, city, or town, at least one
community meeting must be held before the notice is issued for the
planned action ordinance. Notice for the planned action ordinance and
notice of the community meeting required by this subsection must be
mailed or otherwise verifiably provided to:
(a) All property owners of record within the county, city, or town;
(b) All affected federally recognized tribal governments; and
(c) All agencies with jurisdiction over the future development
anticipated for the planned action.
Sec. 304 RCW 43.21C.229 and 2003 c 298 s 1 are each amended to
read as follows:
(1) In order to accommodate infill development and thereby realize
the goals and policies of comprehensive plans adopted according to
chapter 36.70A RCW, a city or county planning under RCW 36.70A.040 is
authorized by this section to establish categorical exemptions from the
requirements of this chapter. An exemption adopted under this section
applies even if it differs from the categorical exemptions adopted by
rule of the department under RCW 43.21C.110(1)(a). An exemption may be
adopted by a city or county under this section if it meets the
following criteria:
(a) It categorically exempts government action related to
development ((that is new residential or mixed-use development))
proposed to fill in an urban growth area, designated according to RCW
36.70A.110, where current density and intensity of use in the area is
lower than called for in the goals and policies of the applicable
comprehensive plan and the development is either:
(i) Residential development;
(ii) Mixed-use development; or
(iii) Commercial development up to sixty-five thousand square feet,
excluding retail development;
(b) It does not exempt government action related to development
that is inconsistent with the applicable comprehensive plan or would
exceed the density or intensity of use called for in the goals and
policies of the applicable comprehensive plan; ((and))
(c) The local government considers the specific probable adverse
environmental impacts of the proposed action and determines that these
specific impacts are adequately addressed by the development
regulations or other applicable requirements of the comprehensive plan,
subarea plan element of the comprehensive plan, planned action
ordinance, or other local, state, or federal rules or laws; and
(d)(i) The city or county's applicable comprehensive plan was
previously subjected to environmental analysis through an environmental
impact statement under the requirements of this chapter prior to
adoption; or
(ii) The city or county has prepared an environmental impact
statement that considers the proposed use or density and intensity of
use in the area proposed for an exemption under this section.
(2) Any categorical exemption adopted by a city or county under
this section shall be subject to the rules of the department adopted
according to RCW 43.21C.110(1)(a) that provide exceptions to the use of
categorical exemptions adopted by the department.
NEW SECTION. Sec. 305 A new section is added to chapter 43.21C
RCW to read as follows:
(1) A county, city, or town may recover its reasonable expenses of
preparation of a nonproject environmental impact statement prepared
under RCW 43.21C.229 and section 303 of this act:
(a) Through access to financial assistance under RCW 36.70A.490;
(b) With funding from private sources; and
(c) By the assessment of fees consistent with the requirements and
limitations of this section.
(2)(a) A county, city, or town is authorized to assess a fee upon
subsequent development that will make use of and benefit from: (i) The
analysis in an environmental impact statement prepared for the purpose
of compliance with section 303 of this act regarding planned actions;
or (ii) the reduction in environmental analysis requirements resulting
from the exercise of authority under RCW 43.21C.229 regarding infill
development.
(b) The amount of the fee must be reasonable and proportionate to
the total expenses incurred by the county, city, or town in the
preparation of the environmental impact statement.
(3) A county, city, or town assessing fees under subsection (2)(a)
of this section must provide for a mechanism by which project
proponents may either elect to utilize the environmental review
completed by the lead agency and pay the fees under subsection (1) of
this section or certify that they do not want the local jurisdiction to
utilize the environmental review completed as a part of a planned
action and therefore not be assessed any associated fees. Project
proponents who choose this option may not make use of or benefit from
the up-front environmental review prepared by the local jurisdiction.
(4) Prior to the collection of fees, the county, city, or town must
enact an ordinance that establishes the total amount of expenses to be
recovered through fees and provides objective standards for determining
the fee amount to be imposed upon each development proposal
proportionate to the impacts of each development and to the benefits
accruing to each development from the nonproject environmental review.
The ordinance must provide (a) a procedure by which an applicant who
disagrees with whether the amount of the fee is correct, reasonable, or
proportionate may pay the fee with the written stipulation "paid under
protest"; and (b) if the county, city, or town provides for an
administrative appeal of its decision on the project for which the fees
are imposed, any dispute about the amount of the fees must be resolved
in the same administrative appeals process. Any disagreement about the
reasonableness, proportionality, or amount of the fees imposed upon a
development may not be the basis for delay in issuance of a project
permit for that development.
(5) The ordinance adopted under subsection (4) of this section must
make information available about the amount of the expenses designated
for recovery. When such expenses have been fully recovered, the
county, city, or town may no longer assess a fee under this section.
(6) Any fees collected under this section from subsequent
development may be used to reimburse funding received from private
sources to conduct the environmental review.
(7) The city, county, or town shall refund fees collected where a
court of competent jurisdiction determines that the environmental
review conducted under section 303 of this act, regarding planned
actions, or under RCW 43.21C.229, regarding infill development, was not
sufficient to comply with the requirements of this chapter regarding
the proposed development activity for which the fees were collected.
The applicant and the city, county, or town may mutually agree to a
partial refund or to waive the refund in the interest of resolving any
dispute regarding compliance with this chapter.
Sec. 306 RCW 82.02.020 and 2010 c 153 s 3 are each amended to
read as follows:
Except only as expressly provided in chapters 67.28, 81.104, and
82.14 RCW, the state preempts the field of imposing retail sales and
use taxes and taxes upon parimutuel wagering authorized pursuant to RCW
67.16.060, conveyances, and cigarettes, and no county, town, or other
municipal subdivision shall have the right to impose taxes of that
nature. Except as provided in RCW 64.34.440 and 82.02.050 through
82.02.090, no county, city, town, or other municipal corporation shall
impose any tax, fee, or charge, either direct or indirect, on the
construction or reconstruction of residential buildings, commercial
buildings, industrial buildings, or on any other building or building
space or appurtenance thereto, or on the development, subdivision,
classification, or reclassification of land. However, this section
does not preclude dedications of land or easements within the proposed
development or plat which the county, city, town, or other municipal
corporation can demonstrate are reasonably necessary as a direct result
of the proposed development or plat to which the dedication of land or
easement is to apply.
This section does not prohibit voluntary agreements with counties,
cities, towns, or other municipal corporations that allow a payment in
lieu of a dedication of land or to mitigate a direct impact that has
been identified as a consequence of a proposed development,
subdivision, or plat. A local government shall not use such voluntary
agreements for local off-site transportation improvements within the
geographic boundaries of the area or areas covered by an adopted
transportation program authorized by chapter 39.92 RCW. Any such
voluntary agreement is subject to the following provisions:
(1) The payment shall be held in a reserve account and may only be
expended to fund a capital improvement agreed upon by the parties to
mitigate the identified, direct impact;
(2) The payment shall be expended in all cases within five years of
collection; and
(3) Any payment not so expended shall be refunded with interest to
be calculated from the original date the deposit was received by the
county and at the same rate applied to tax refunds pursuant to RCW
84.69.100; however, if the payment is not expended within five years
due to delay attributable to the developer, the payment shall be
refunded without interest.
No county, city, town, or other municipal corporation shall require
any payment as part of such a voluntary agreement which the county,
city, town, or other municipal corporation cannot establish is
reasonably necessary as a direct result of the proposed development or
plat.
Nothing in this section prohibits cities, towns, counties, or other
municipal corporations from collecting reasonable fees from an
applicant for a permit or other governmental approval to cover the cost
to the city, town, county, or other municipal corporation of processing
applications, inspecting and reviewing plans, or preparing detailed
statements required by chapter 43.21C RCW, including reasonable fees
that are consistent with RCW 43.21C.420(6) and section 305 of this act.
This section does not limit the existing authority of any county,
city, town, or other municipal corporation to impose special
assessments on property specifically benefited thereby in the manner
prescribed by law.
Nothing in this section prohibits counties, cities, or towns from
imposing or permits counties, cities, or towns to impose water, sewer,
natural gas, drainage utility, and drainage system charges. However,
no such charge shall exceed the proportionate share of such utility or
system's capital costs which the county, city, or town can demonstrate
are attributable to the property being charged. Furthermore, these
provisions may not be interpreted to expand or contract any existing
authority of counties, cities, or towns to impose such charges.
Nothing in this section prohibits a transportation benefit district
from imposing fees or charges authorized in RCW 36.73.120 nor prohibits
the legislative authority of a county, city, or town from approving the
imposition of such fees within a transportation benefit district.
Nothing in this section prohibits counties, cities, or towns from
imposing transportation impact fees authorized pursuant to chapter
39.92 RCW.
Nothing in this section prohibits counties, cities, or towns from
requiring property owners to provide relocation assistance to tenants
under RCW 59.18.440 and 59.18.450.
Nothing in this section limits the authority of counties, cities,
or towns to implement programs consistent with RCW 36.70A.540, nor to
enforce agreements made pursuant to such programs.
This section does not apply to special purpose districts formed and
acting pursuant to Title 54, 57, or 87 RCW, nor is the authority
conferred by these titles affected.
NEW SECTION. Sec. 307 A new section is added to chapter 43.21C
RCW to read as follows:
The following nonproject actions are categorically exempt from the
requirements of this chapter:
(1) Amendments to development regulations that are required to
ensure consistency with an adopted comprehensive plan pursuant to RCW
36.70A.040, where the comprehensive plan was previously subjected to
environmental review pursuant to this chapter and the impacts
associated with the proposed regulation were specifically addressed in
the prior environmental review;
(2) Amendments to development regulations that are required to
ensure consistency with a shoreline master program approved pursuant to
RCW 90.58.090, where the shoreline master program was previously
subjected to environmental review pursuant to this chapter and the
impacts associated with the proposed regulation were specifically
addressed in the prior environmental review;
(3) Amendments to development regulations that, upon implementation
of a project action, will provide increased environmental protection,
limited to the following:
(a) Increased protections for critical areas, such as enhanced
buffers or setbacks;
(b) Increased vegetation retention or decreased impervious surface
areas in shoreline jurisdiction; and
(c) Increased vegetation retention or decreased impervious surface
areas in critical areas;
(4) Amendments to technical codes adopted by a county, city, or
town to ensure consistency with minimum standards contained in state
law, including the following:
(a) Building codes required by chapter 19.27 RCW;
(b) Energy codes required by chapter 19.27A RCW; and
(c) Electrical codes required by chapter 19.28 RCW.
NEW SECTION. Sec. 308 A new section is added to chapter 43.21C
RCW to read as follows:
(1) The lead agency for an environmental review under this chapter
utilizing an environmental checklist developed by the department of
ecology pursuant to RCW 43.21C.110 may identify within the checklist
provided to applicants instances where questions on the checklist are
adequately covered by a locally adopted ordinance, development
regulation, land use plan, or other legal authority.
(2) If a lead agency identifies an instance as described in
subsection (1) of this section, it still must consider whether the
action has an impact on the particular element or elements of the
environment in question.
(3) In instances where the locally adopted ordinance, development
regulation, land use plan, or other legal authority provide the
necessary information to answer a specific question, the lead agency
must explain how the proposed project satisfies the underlying local
legal authority.
(4) If the lead agency identifies instances where questions on the
checklist are adequately covered by a locally adopted ordinance,
development regulation, land use plan, or other legal authority, an
applicant may still provide answers to any questions on the checklist.
(5) Nothing in this section authorizes a lead agency to ignore or
delete a question on the checklist.
(6) Nothing in this section changes the standard for whether an
environmental impact statement is required for an action that may have
a probable significant, adverse environmental impact pursuant to RCW
43.21C.030.
(7) Nothing in this section affects the appeal provisions provided
in this chapter.
(8) Nothing in this section modifies existing rules for determining
the lead agency, as defined in WAC 197-11-922 through 197-11-948, nor
does it modify agency procedures for complying with the state
environmental policy act when an agency other than a local government
is serving as the lead agency.
Sec. 309 RCW 36.70A.490 and 1995 c 347 s 115 are each amended to
read as follows:
The growth management planning and environmental review fund is
hereby established in the state treasury. Moneys may be placed in the
fund from the proceeds of bond sales, tax revenues, budget transfers,
federal appropriations, gifts, or any other lawful source. Moneys in
the fund may be spent only after appropriation. Moneys in the fund
shall be used to make grants or loans to local governments for the
purposes set forth in RCW 43.21C.240, 43.21C.031, or 36.70A.500. Any
payment of either principal or interest, or both, derived from loans
made from this fund must be deposited into the fund.
Sec. 310 RCW 36.70A.500 and 1997 c 429 s 28 are each amended to
read as follows:
(1) The department of ((community, trade, and economic
development)) commerce shall provide management services for the growth
management planning and environmental review fund created by RCW
36.70A.490. The department shall establish procedures for fund
management. The department shall encourage participation in the grant
or loan program by other public agencies. The department shall develop
the grant or loan criteria, monitor the grant or loan program, and
select grant or loan recipients in consultation with state agencies
participating in the grant or loan program through the provision of
grant or loan funds or technical assistance.
(2) A grant or loan may be awarded to a county or city that is
required to or has chosen to plan under RCW 36.70A.040 and that is
qualified pursuant to this section. The grant or loan shall be
provided to assist a county or city in paying for the cost of preparing
an environmental analysis under chapter 43.21C RCW, that is integrated
with a comprehensive plan, subarea plan, plan element, countywide
planning policy, development regulation, monitoring program, or other
planning activity adopted under or implementing this chapter that:
(a) Improves the process for project permit review while
maintaining environmental quality; or
(b) Encourages use of plans and information developed for purposes
of complying with this chapter to satisfy requirements of other state
programs.
(3) In order to qualify for a grant or loan, a county or city
shall:
(a) Demonstrate that it will prepare an environmental analysis
pursuant to chapter 43.21C RCW and subsection (2) of this section that
is integrated with a comprehensive plan, subarea plan, plan element,
countywide planning policy, development regulations, monitoring
program, or other planning activity adopted under or implementing this
chapter;
(b) Address environmental impacts and consequences, alternatives,
and mitigation measures in sufficient detail to allow the analysis to
be adopted in whole or in part by applicants for development permits
within the geographic area analyzed in the plan;
(c) Demonstrate that procedures for review of development permit
applications will be based on the integrated plans and environmental
analysis;
(d) Include mechanisms to monitor the consequences of growth as it
occurs in the plan area and to use the resulting data to update the
plan, policy, or implementing mechanisms and associated environmental
analysis;
(e) Demonstrate substantial progress towards compliance with the
requirements of this chapter. A county or city that is more than six
months out of compliance with a requirement of this chapter is deemed
not to be making substantial progress towards compliance; and
(f) Provide local funding, which may include financial
participation by the private sector.
(4) In awarding grants or loans, the department shall give
preference to proposals that include one or more of the following
elements:
(a) Financial participation by the private sector, or a
public/private partnering approach;
(b) Identification and monitoring of system capacities for elements
of the built environment, and to the extent appropriate, of the natural
environment;
(c) Coordination with state, federal, and tribal governments in
project review;
(d) Furtherance of important state objectives related to economic
development, protection of areas of statewide significance, and siting
of essential public facilities;
(e) Programs to improve the efficiency and effectiveness of the
permitting process by greater reliance on integrated plans and
prospective environmental analysis;
(f) Programs for effective citizen and neighborhood involvement
that contribute to greater likelihood that planning decisions can be
implemented with community support; ((and))
(g) Programs to identify environmental impacts and establish
mitigation measures that provide effective means to satisfy concurrency
requirements and establish project consistency with the plans; or
(h) Environmental review that addresses the impacts of increased
density or intensity of comprehensive plans, subarea plans, or
receiving areas designated by a city or town under the regional
transfer of development rights program in chapter 43.362 RCW.
(5) If the local funding includes funding provided by other state
functional planning programs, including open space planning and
watershed or basin planning, the functional plan shall be integrated
into and be consistent with the comprehensive plan.
(6) State agencies shall work with grant or loan recipients to
facilitate state and local project review processes that will implement
the projects receiving grants or loans under this section.
Sec. 311 RCW 43.21C.110 and 1997 c 429 s 47 are each amended to
read as follows:
It shall be the duty and function of the department of ecology:
(1) To adopt and amend ((thereafter)) rules of interpretation and
implementation of this chapter, subject to the requirements of chapter
34.05 RCW, for the purpose of providing uniform rules and guidelines to
all branches of government including state agencies, political
subdivisions, public and municipal corporations, and counties. The
proposed rules shall be subject to full public hearings requirements
associated with rule ((promulgation)) adoption. Suggestions for
modifications of the proposed rules shall be considered on their
merits, and the department shall have the authority and responsibility
for full and appropriate independent ((promulgation and)) adoption of
rules, assuring consistency with this chapter as amended and with the
preservation of protections afforded by this chapter. The rule-making
powers authorized in this section shall include, but shall not be
limited to, the following phases of interpretation and implementation
of this chapter:
(a) Categories of governmental actions which are not to be
considered as potential major actions significantly affecting the
quality of the environment, including categories pertaining to
applications for water right permits pursuant to chapters 90.03 and
90.44 RCW. The types of actions included as categorical exemptions in
the rules shall be limited to those types which are not major actions
significantly affecting the quality of the environment. The rules
shall provide for certain circumstances where actions which potentially
are categorically exempt require environmental review. An action that
is categorically exempt under the rules adopted by the department may
not be conditioned or denied under this chapter.
(b) Rules for criteria and procedures applicable to the
determination of when an act of a branch of government is a major
action significantly affecting the quality of the environment for which
a detailed statement is required to be prepared pursuant to RCW
43.21C.030.
(c) Rules and procedures applicable to the preparation of detailed
statements and other environmental documents, including but not limited
to rules for timing of environmental review, obtaining comments, data
and other information, and providing for and determining areas of
public participation which shall include the scope and review of draft
environmental impact statements.
(d) Scope of coverage and contents of detailed statements assuring
that such statements are simple, uniform, and as short as practicable;
statements are required to analyze only reasonable alternatives and
probable adverse environmental impacts which are significant, and may
analyze beneficial impacts.
(e) Rules and procedures for public notification of actions taken
and documents prepared.
(f) Definition of terms relevant to the implementation of this
chapter including the establishment of a list of elements of the
environment. Analysis of environmental considerations under RCW
43.21C.030(2) may be required only for those subjects listed as
elements of the environment (or portions thereof). The list of
elements of the environment shall consist of the "natural" and "built"
environment. The elements of the built environment shall consist of
public services and utilities (such as water, sewer, schools, fire and
police protection), transportation, environmental health (such as
explosive materials and toxic waste), and land and shoreline use
(including housing, and a description of the relationships with land
use and shoreline plans and designations, including population).
(g) Rules for determining the obligations and powers under this
chapter of two or more branches of government involved in the same
project significantly affecting the quality of the environment.
(h) Methods to assure adequate public awareness of the preparation
and issuance of detailed statements required by RCW 43.21C.030(2)(c).
(i) To prepare rules for projects setting forth the time limits
within which the governmental entity responsible for the action shall
comply with the provisions of this chapter.
(j) Rules for utilization of a detailed statement for more than one
action and rules improving environmental analysis of nonproject
proposals and encouraging better interagency coordination and
integration between this chapter and other environmental laws.
(k) Rules relating to actions which shall be exempt from the
provisions of this chapter in situations of emergency.
(l) Rules relating to the use of environmental documents in
planning and decision making and the implementation of the substantive
policies and requirements of this chapter, including procedures for
appeals under this chapter.
(m) Rules and procedures that provide for the integration of
environmental review with project review as provided in RCW 43.21C.240.
The rules and procedures shall be jointly developed with the department
of ((community, trade, and economic development)) commerce and shall be
applicable to the preparation of environmental documents for actions in
counties, cities, and towns planning under RCW 36.70A.040. The rules
and procedures shall also include procedures and criteria to analyze
planned actions under ((RCW 43.21C.031(2))) section 303 of this act and
revisions to the rules adopted under this section to ensure that they
are compatible with the requirements and authorizations of chapter 347,
Laws of 1995, as amended by chapter 429, Laws of 1997. Ordinances or
procedures adopted by a county, city, or town to implement the
provisions of chapter 347, Laws of 1995 prior to the effective date of
rules adopted under this subsection (1)(m) shall continue to be
effective until the adoption of any new or revised ordinances or
procedures that may be required. If any revisions are required as a
result of rules adopted under this subsection (1)(m), those revisions
shall be made within the time limits specified in RCW 43.21C.120.
(2) In exercising its powers, functions, and duties under this
section, the department may:
(a) Consult with the state agencies and with representatives of
science, industry, agriculture, labor, conservation organizations,
state and local governments, and other groups, as it deems advisable;
and
(b) Utilize, to the fullest extent possible, the services,
facilities, and information (including statistical information) of
public and private agencies, organizations, and individuals, in order
to avoid duplication of effort and expense, overlap, or conflict with
similar activities authorized by law and performed by established
agencies.
(3) Rules adopted pursuant to this section shall be subject to the
review procedures of chapter 34.05 RCW.
Sec. 312 RCW 43.21C.095 and 1983 c 117 s 5 are each amended to
read as follows:
The rules ((promulgated)) adopted under RCW 43.21C.110 shall be
accorded substantial deference in the interpretation of this chapter.
Sec. 313 RCW 90.48.260 and 2011 c 353 s 12 are each amended to
read as follows:
(1) 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 this chapter ((90.48 RCW)) or otherwise, the
following:
(a) 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:
(i) Effluent treatment and limitation requirements together with timing
requirements related thereto; (ii) applicable receiving water quality
standards requirements; (iii) requirements of standards of performance
for new sources; (iv) pretreatment requirements; (v) termination and
modification of permits for cause; (vi) requirements for public notices
and opportunities for public hearings; (vii) appropriate relationships
with the secretary of the army in the administration of his or her
responsibilities which relate to anchorage and navigation, with the
administrator of the environmental protection agency in the performance
of his or her duties, and with other governmental officials under the
federal clean water act; (viii) requirements for inspection,
monitoring, entry, and reporting; (ix) enforcement of the program
through penalties, emergency powers, and criminal sanctions; (x) a
continuing planning process; and (xi) user charges.
(b) The power to establish and administer state programs in a
manner which will ((insure)) ensure 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.
(c) 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.
(2) By July 31, 2012, the department shall:
(a) Reissue without modification and for a term of ((one)) two
years any national pollutant discharge elimination system municipal
storm water general permit first issued on January 17, 2007, for
eastern Washington municipalities; and
(b) Issue an updated national pollutant discharge elimination
system municipal storm water general permit for any permit first issued
on January 17, 2007, for eastern Washington municipalities. An updated
permit issued under this subsection shall become effective beginning
August 1, ((2013)) 2014."
Correct the title.
EFFECT: Creates civil HPA enforcement authority for projects occurring below the ordinary high water line, removes the 2016 expiration on HPA fees, removes references to general permits and reduces the scope of the marine general permit to repair and not installation activities, and limits storm water changes to eastern Washington only.