BILL REQ. #:  S-1272.1 

Read first time 02/09/11.   Referred to Committee on Agriculture & Rural Economic Development.

     AN ACT Relating to establishing a process for addressing water quality issues associated with livestock operations; amending RCW 90.48.260; adding a new chapter to Title 90 RCW; and providing a contingent effective date.

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

NEW SECTION.  Sec. 1   The legislature finds there is a need to establish a clear and understandable process in statute that provides for the proper and effective management of livestock nutrients that affect the quality of surface waters or groundwaters in the state of Washington. The legislature finds that there is a need for a program that will provide a stable and predictable business climate upon which livestock operations may base future investment decisions.
     It is the intent of this chapter to place the responsibility for conducting initial investigations of livestock operations relating to impacts on water quality with the department of agriculture. Further, it is the legislature's intent that if impacts are found to exist, a structure be established to provide an orderly process to address these impacts through the use of technical assistance and programs available from conservation districts and associated federal agencies.
     It is also the intent to transfer the powers and duties for conducting initial investigations of water quality issues arising from livestock operations from the department of ecology to the department of agriculture though a memorandum of understanding and that authority currently held by the department of ecology be retained should a regulatory backstop be needed.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Confined animal feeding operations" means those operations that are subject to permit requirements of the national pollutant discharge elimination system.
     (2) "Conservation commission" or "commission" means the conservation commission under chapter 89.08 RCW.
     (3) "Conservation districts" or "district" means a subdivision of state government organized under chapter 89.08 RCW.
     (4) "Dairy operations" means those livestock operations subject to requirements under chapter 90.64 RCW.
     (5) "Department" means the department of agriculture.
     (6) "Director" means the director of the department of agriculture.
     (7) "Livestock" means horses, mules, donkeys, cattle, bison, sheep, goats, swine, rabbits, llamas, alpacas, ratites, poultry, waterfowl, game birds, and other species so designated by statute.
     (8) "Nutrients" means manure or other runoff generated as a result of a livestock operation that enters waters of the state.

NEW SECTION.  Sec. 3   (1) The department must conduct initial investigations regarding possible water quality violations by livestock operations.
     (2) Upon receiving a complaint, upon its own determination that a livestock operation is a likely source of water quality degradation, or in watersheds that have been determined to be a priority basin due to impairment of water quality, the department may investigate a livestock operation to determine whether the operation is discharging livestock nutrients or recently has discharged livestock nutrients into surface waters or groundwaters of the state.
     (3)(a) The department shall investigate a written complaint filed with the department within ten days and shall make a written report of its findings including the results of any water quality measurements, photographs, or other pertinent information.
     (b) A copy of the findings shall be provided upon request to the livestock operation.
     (4) Those livestock operations that are determined to be a significant contributor of pollution based on actual water quality tests, photographs, or other pertinent information, if immediate corrective actions are not possible, are subject to this chapter.

NEW SECTION.  Sec. 4   Enforcement actions and administrative
orders issued by the department may be appealed to the pollution control hearings board in accordance with chapter 43.21B RCW.

NEW SECTION.  Sec. 5   (1) The department has the following duties:
     (a) To identify existing or potential water quality problems resulting from livestock operations;
     (b) To receive, process, and verify complaints concerning discharge of pollutants from all livestock operations regardless of size;
     (c) To determine if a livestock-related water quality problem requires immediate corrective action under water pollution control laws, chapter 90.48 RCW, water quality standards adopted under chapter 90.48 RCW, or other authorities. The department shall maintain the lead enforcement responsibility;
     (d) To encourage communication between local department personnel and the appropriate conservation district personnel;
     (e) To encourage the use of federal natural resource conservation service standards and specifications in designing best management practices for livestock nutrient management plans to protect water quality; and
     (f) To provide to the commission an annual report on enforcement actions relating to water pollution from livestock nutrients.
     (2) The department may not delegate its responsibilities in enforcement to the commission or to conservation districts.

NEW SECTION.  Sec. 6   (1) If the department determines that the operator of a livestock operation has the means to correct a water quality problem in a manner that will prevent future contamination, does so promptly, and such correction is maintained, the department shall cease pursuing the complaint.
     (2) If the department determines that an unresolved water quality problem from a livestock operation requires immediate corrective action, the department shall notify the operator and the district in which the problem is located.
     (3) If immediate action is not necessary by the department, the handling of complaints will differ depending on the amount of information available and the compliance option selected by the conservation district involved.
     (a) When the name and address of the party against whom the complaint was registered are known:
     (i) Districts operating at levels 1 and 2 will receive a copy of complaint information, and the compliance letter if one was sent out;
     (ii) Districts operating at levels 3 and 4 will receive a copy of complaint information and the letter sent by the department to the operator informing the operator of the complaint and providing the operator with the opportunity to work with the conservation district on a voluntary basis.
     (b) The department and the conservation district will work together at the local level to resolve complaints when the name and address of the party against whom the complaint was registered are unknown.

NEW SECTION.  Sec. 7   (1) A conservation district has the following duties:
     (a) To adopt and annually update the water quality section in the conservation district livestock nutrient management plan;
     (b) As part of the district annual report, to include a water quality progress report on livestock nutrient management activities conducted that are related to this chapter;
     (c) To encourage communication between the conservation district personnel and local department personnel; and
     (d) To adopt and carry out a compliance option from level 1, level 2, level 3, or level 4.
     (2) The district's capability to carry out its responsibilities in the four levels of compliance is contingent upon the availability of funding and resources to implement a livestock nutrient management program.

NEW SECTION.  Sec. 8   (1) The conservation commission has the following duties:
     (a) To forward to the department the livestock nutrient management plan progress reports;
     (b) To provide assistance as may be appropriate to the conservation districts in the discharge of their responsibilities as management agencies in livestock nutrient management program implementation;
     (c) To provide coordination for conservation district programs at the state level through special arrangements with appropriate federal and state agencies;
     (d) To inform conservation districts of activities and experiences of other conservation districts relative to agricultural water quality protection, and facilitate an interchange of advice, experience, and cooperation between the districts;
     (e) To encourage communication between the conservation district personnel and local department personnel;
     (f) To appoint conservation district representatives to serve on the compliance review committee with advice of the Washington association of conservation districts;
     (g) To appoint a commission representative to participate on the compliance review committee that will annually review and update policy and disseminate information as needed; and
     (h) To work with the department to provide communication outreach to representatives of agricultural and environmental organizations to receive feedback on implementation of this chapter.
     (2) The commission's capability to carry out its responsibilities under this chapter is contingent upon the availability of funding and resources to implement a livestock nutrient management program.

NEW SECTION.  Sec. 9   Conservation districts must adopt one of the following compliance levels:
     (1)(a) Level 1 compliance - Information/education/technical assistance. The conservation district serves as a local source of information on livestock nutrient management plan implementation programs. The conservation district promotes plans and efforts to improve water quality and explains the benefits of participating in available implementation plans through news releases and other media for the general public; presentations to groups and civic organizations; workshops; training sessions; or other appropriate means. The conservation district provides technical assistance upon request.
     (b) Response to complaint. The department responds to complaints that involve water quality problems caused by livestock operations. The department must work with the operator to bring the operation into compliance with federal statutes and regulations and applicable state laws. If immediate action is deemed necessary, the department must pursue the appropriate actions that may include enforcement against the responsible parties. The department must advise the operator of the information and technical assistance available through the conservation district and notify the conservation district of the operator's need for information or technical assistance.
     (2)(a) Level 2 compliance - Information, education, problem assessment, and handling complaints. The conservation district carries out programs described for compliance level 1. In addition, the conservation district must inventory livestock nutrient-related water quality problems defined in the water quality section of its annual plan, prioritize problems, and work to apply voluntary solutions to the highest priority problems within available resources using information, education, technical assistance, and incentives.
     (b)(i) Response to complaint. The conservation district must make an appointment for an on-site contact with the alleged violator within ten working days and determine if the operator desires to work with the conservation district. If the operator desires conservation district assistance, within six months the conservation district must develop a plan with the individual operator that includes a schedule for application of best management practices. The operator has eighteen months, or by agreement an approved schedule with an alternative time period, to implement the plan. If hardships occur, the operator may request an extension of the implementation schedule subject to concurrence of the department.
     (ii) In responding to complaints, the conservation district must report progress, or the need for further department technical expertise, to the individual involved and the department. A copy of the plan must be made available to the department. If the district offers assistance and the individual involved refuses to cooperate or ceases to work with the conservation district, the district must notify the department.
     (iii) The conservation district must refer all alleged water quality violations or individuals who wish to make a complaint to the department.
     (iv) The department must investigate and seek resolution of all complaints that appear to need immediate action and refer all other complaints concerning livestock operations to the appropriate conservation district. The department must keep a record of those complaints. When a referral is made by a conservation district due to a continuing unresolved water quality problem, the department must take appropriate action and advise the conservation district of the action taken.
     (3)(a) Level 3 compliance - Information, education, problem assessment, handling complaints, and assisting in compliance. The conservation district carries out programs described for compliance levels 1 and 2. In addition, the conservation district must actively follow up those problems and complaints deemed highest priority by the conservation district within sixty days after the initial contact.
     (b) Response to complaint. The complaint referral follow-up includes:
     (i) Meeting with the owner/operator;
     (ii) Making an on-site assessment of the nature and extent of the problem, if so desired by the owner or operator;
     (iii) Notifying the department within twenty-five working days that the owner or operator has or has not requested assistance from the conservation district;
     (iv) Assisting the owner or operator in the development of a livestock nutrient management plan within six months. Implementation must be completed within eighteen months, or by agreement and approved schedule, with an alternative time period to implement the plan. If hardships occur, the owner or operator may request an extension of the planning or implementation schedule with concurrence of the department;
     (v) Providing such technical assistance as is necessary and available during plan implementation;
     (vi) Monitoring plan implementation;
     (vii) Notifying the department within twenty-five working days in the event that the owner or operator either refuses to cooperate in the development of a livestock nutrient management plan that corrects the problems identified during the on-site assessment, or fails to implement the plan within the designated time period; and
     (viii) By June 30th of each year, submitting a formal summary of progress on alleged water quality violations referred to the conservation district by the department.
     (c) The department must investigate and seek resolution of all complaints that appear to need immediate action and pursue all activities addressed with regard to level 2 districts. However, on those sites where the conservation district is making progress on water quality problems caused from livestock operations and is reporting the progress to the department, the department must hold any related enforcement actions in abeyance until the problem is solved or until the operator refuses to cooperate further. The department must continue to pursue any immediate action where required.
     (4)(a) Level 4 compliance - Compliance. The conservation district carries out programs described for compliance levels 1 through 3. In addition, the conservation district must provide information and direct support for resolving water quality actions that may be filed by the department pursuant to its statutory authority. Information and support required at this level includes the following:
     (i) A field site tour to provide information and attempt to resolve the issues;
     (ii) Provision for access to public information in a conservation district's files and, if appropriate, in-house documents such as field notes, photographs, and in-house memoranda, subject to applicable access laws and rules;
     (iii) Department interviews with appropriate conservation district personnel regarding a site under enforcement;
     (iv) Assistance and attendance, if appropriate, at negotiation sessions with responsible parties;
     (v) Affidavits or testimony necessary to document the case.
     (b) The department must pursue all activities as required for compliance level 3, except where the conservation district has been involved the department must use the information and support offered by the conservation district to resolve the matter.

NEW SECTION.  Sec. 10   The director may enter at all reasonable times in or upon livestock operations for the purpose of inspecting and investigating conditions relating to pollution of any waters of the state.
     If the director or the director's duly appointed agent is denied access to a livestock operation, he or she may apply to a court of competent jurisdiction for a search warrant authorizing access to the property and facilities at a reasonable time for purposes of conducting tests and inspections and taking samples. To show that access is denied, the director must file with the court an affidavit or declaration containing a description of his or her attempts to notify and locate the owner or the owner's agent and to secure consent. Upon application, the court may issue a search warrant for the purposes requested.

NEW SECTION.  Sec. 11   A party acting under this chapter is not liable for another party's actions under this chapter.

NEW SECTION.  Sec. 12   The department may adopt rules as necessary to implement this chapter.

NEW SECTION.  Sec. 13   Nothing in this chapter affects the department of ecology's authority or responsibility to enforce the national pollutant discharge elimination system permits for operators of confined animal feeding operations required by federal regulations or its authority to administer the provisions of chapter 90.48 RCW.
     Nothing in this chapter affects livestock operations regulated under the dairy nutrient management act, chapter 90.64 RCW.

Sec. 14   RCW 90.48.260 and 2007 c 341 s 55 are each amended to read as follows:
     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 department may delegate its authority and duties under this chapter regarding livestock operations as defined in section 2 of this act to the department of agriculture including the responsibility to conduct initial investigations and enforcement of violations through a memorandum of understanding entered into for the purposes of chapter 90.--- RCW (the new chapter created in section 16 of this act). The powers granted herein include, among others, and notwithstanding any other provisions of this chapter ((90.48 RCW)) or otherwise, the following:
     (1) Complete authority to establish and administer a comprehensive state point source waste discharge or pollution discharge elimination permit program which will enable the department to qualify for full participation in any national waste discharge or pollution discharge elimination permit system and will allow the department to be the sole agency issuing permits required by such national system operating in the state of Washington subject to the provisions of RCW 90.48.262(2). Program elements authorized herein may include, but are not limited to: (a) Effluent treatment and limitation requirements together with timing requirements related thereto; (b) applicable receiving water quality standards requirements; (c) requirements of standards of performance for new sources; (d) pretreatment requirements; (e) termination and modification of permits for cause; (f) requirements for public notices and opportunities for public hearings; (g) appropriate relationships with the secretary of the army in the administration of his responsibilities which relate to anchorage and navigation, with the administrator of the environmental protection agency in the performance of his duties, and with other governmental officials under the federal clean water act; (h) requirements for inspection, monitoring, entry, and reporting; (i) enforcement of the program through penalties, emergency powers, and criminal sanctions; (j) a continuing planning process; and (k) user charges.
     (2) The power to establish and administer state programs in a manner which will insure the procurement of moneys, whether in the form of grants, loans, or otherwise; to assist in the construction, operation, and maintenance of various water pollution control facilities and works; and the administering of various state water pollution control management, regulatory, and enforcement programs.
     (3) The power to develop and implement appropriate programs pertaining to continuing planning processes, area-wide waste treatment management plans, and basin planning.
     The governor shall have authority to perform those actions required of him or her by the federal clean water act.

NEW SECTION.  Sec. 15   The department of agriculture, the department of ecology, and the state conservation commission shall approach the federal environmental protection agency to secure new funding or seek redirection of existing funds for the administration of this chapter.

NEW SECTION.  Sec. 16   Sections 1 through 13 and 15 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION.  Sec. 17   This act takes effect on the later of October 1, 2011, or upon written declaration by the director of agriculture and the executive director of the conservation commission to the office of financial management that sufficient funding for the program has been secured. Once funding has been secured and the department of agriculture or the state conservation commission subsequently find that funding is insufficient to continue their respective roles in implementing this act, they shall notify the office of financial management in writing at which time the administration of the program shall revert to the department of ecology.