BILL REQ. #: S-4515.1
| State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 02/03/12.
AN ACT Relating to modifying programs that provide for the protection of the state's natural resources; amending RCW 77.55.021, 77.15.300, 77.55.291, 77.55.151, 77.55.231, 76.09.040, 76.09.050, 76.09.150, 76.09.065, 76.09.470, 76.09.030, 43.21C.031, 43.21C.087, 43.21C.229, 43.21C.420, 36.70A.490, 36.70A.500, 82.02.020, 43.21C.110, 43.21C.095, and 36.70A.280; reenacting and amending RCW 77.55.011, 43.21B.110, 76.09.060, and 76.09.020; adding new sections to chapter 77.55 RCW; adding a new section to chapter 35.21 RCW; adding a new section to chapter 36.01 RCW; adding a new section to chapter 39.34 RCW; adding a new section to chapter 76.09 RCW; adding a new section to chapter 43.30 RCW; adding new sections to chapter 43.21C RCW; adding a new section to chapter 82.02 RCW; creating new sections; prescribing penalties; providing a contingent effective date; and providing expiration dates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
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) "General permit" means a hydraulic project approval issued to
a person under RCW 77.55.021 for multiple hydraulic projects that: (a)
Involve repair or maintenance activities; and (b) occur over a defined
geographic area, but for which specific project sites have not been
designated.
(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) "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.
(25) "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.
(26) "One hundred year floodplain" means those areas subject to a
base (one hundred year) flood and designated as special flood hazard
areas on the most recent maps provided by the federal emergency
management agency for the national flood insurance program. Best
available information must be used if these maps are not available or
sufficient as determined by the federal emergency management agency.
(27)(a) "Shoreline or streambank protection project" means the
physical armoring of any surface that is adjacent to waters of the
state using materials including concrete, rock, large woody material,
or the use of other man-made materials for the purposes of preventing
or limiting erosion.
(b) "Shoreline or streambank protection project" does not include
the use of live native vegetation unless that vegetation is required as
mitigation for impacts to fish life.
(28) "Forest practices hydraulic project" means a hydraulic project
that requires a forest practices application under chapter 76.09 RCW.
(29) "Adjacent" means within: (a) Fifty horizontal feet of the
ordinary high water line for marine shorelines, freshwater lakes, and
freshwater rivers or streams within a moderately confined channel; and
(b) two hundred horizontal feet of the ordinary high water line for
rivers or streams within unconfined channels.
(30) "Unconfined channel" means larger rivers or streams that can
experience abrupt shifts in channel location, creating a complex
floodplain characterized by gravel bars, disturbance of vegetation of
variable age, two or more side channels, wall-based channels, oxbow
lakes, or wetland complexes.
(31) "Moderately confined channel" means streams that consist of
single channels with low to moderate sinuosity. These channels are
typically located within a narrow valley with a marginal floodplain or
narrow terrace development.
(32)(a) "Repair or maintenance" means the care and upkeep of
existing structures and conditions that have the potential to impact
the natural bed or flow of any waters of the state.
(b) "Repair or maintenance" does not include routine, repetitive
maintenance activities that do not have the potential to impact the
natural flow or bed of any waters of the state.
(33)(a) "Stream channelization" means the excavation or trenching
of soils or gravel adjacent to the ordinary high water line that may
use, obstruct, or divert stream flow from freshwaters of the state.
(b) "Stream channelization" does not include roadside ditches that
do not convey waters of the state or temporary excavation and trenching
that will not intercept or capture waters of the state prior to the
site being restored to its condition prior to the project.
(34) "Outfall" means a structure designed or used for the purpose
of discharging water or other fluids from a storm water, sewer, or
irrigation conveyance system into waters of the state.
Sec. 102 RCW 77.55.021 and 2010 c 210 s 27 are each amended to
read as follows:
(1)(a) Except as provided in RCW 77.55.031, 77.55.041, and
77.55.051((,)) and ((77.55.041)) section 201 of this act, ((in the
event that any)) a person ((or government agency desires to undertake
a hydraulic project, the person or government agency)) shall((, before
commencing work thereon,)):
(i) 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 before conducting a hydraulic project at or below the ordinary
high water line, including those components of the project located
above the ordinary high water line that are physically connected to
those at or below the ordinary high water line and that will use,
divert, obstruct, or change the natural flow or bed of any of the salt
or freshwaters of the state; and
(ii) Submit a written application to the department as provided in
this section before conducting a hydraulic project above the ordinary
high water line that involves one of the following project types:
(A) A new dike or levee within the one hundred year floodplain;
(B) Repair or maintenance of an existing bridge, dike, or levee
adjacent to the ordinary high water line;
(C) A new or replacement bridge that crosses waters of the state;
(D) A shoreline or streambank protection project adjacent to the
ordinary high water line;
(E) An outfall that discharges to waters of the state;
(F) Mineral prospecting not covered under the gold and fish
pamphlet authorized by RCW 77.55.091 adjacent to the ordinary high
water line; or
(G) Stream channelization adjacent to the ordinary high water line.
(b)(i) Upon receipt of an application under (a)(ii) of this
subsection, the director shall determine whether the proposed hydraulic
project requires a permit. A permit is required if the proposed
hydraulic project: (A) Involves 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; and (B) creates a
reasonable likelihood of impacts to fish life. In making this
determination, the director may consider factors including, but not
limited to, project size, scope, planned time frame and duration, and
proximity to waters of the state.
(ii) If the director determines that a proposed hydraulic project
creates a reasonable likelihood of impacts to fish life, the department
shall review and process the application as provided in this section.
If the director determines that a proposed hydraulic project does not
create a reasonable likelihood of impacts to fish life, no permit is
required and the department shall refund all fees as provided in
section 103 of this act.
(iii) The director may only delegate the authority to make the
determinations required under this subsection (1)(b) to department
personnel who report directly to the director.
(2) Except for pamphlet hydraulic projects, a complete written
application for a permit ((may)) must be submitted ((in person or by
registered mail)) to the department and must contain the following:
(a) ((General plans for the overall project;)) Complete plans and specifications ((
(b)of the proposed
construction or work within the mean higher high water line in
saltwater or within the ordinary high water line in freshwater)) for
the hydraulic project;
(((c) Complete plans and specifications)) (b) Proposed measures for
the proper protection of fish life; ((and)) (c) Notice of compliance with any applicable requirements of
the state environmental policy act, unless otherwise provided for in
this chapter; and
(d)
(d) Payment of all applicable application submittal and permit
processing 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 general 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.
(((3))) (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.
(e) The department has sixty calendar days upon receipt of a
complete application submitted under subsection (1)(a)(ii) of this
section to grant or deny approval of a permit.
(((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.)) Approval of a permit is valid for ((
(b)a period of)) up to five
years from the date of issuance, except as provided in (((c))) (b) of
this subsection and in RCW 77.55.151.
(((c))) (b) 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. 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.
(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.
(((9))) (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) Except as otherwise provided in this section, the department
shall charge a submittal fee and a processing fee, established by the
department consistent with this section, for all hydraulic project
permits issued under RCW 77.55.021, to recover a portion of the costs
for processing and issuing decisions on permit notifications and
applications, administering fee collections, and compliance and
effectiveness monitoring and enforcement of projects requiring a
permit.
(2) When assessing fees for permits under this section, the
department must categorize the following hydraulic projects as low
complexity:
(a) Anchoring or mooring buoys and navigation aids;
(b) Water crossing structures in nonfish bearing waters
(maintenance or repair);
(c) Bridge repair or maintenance above the ordinary high water line
(cleaning, painting, or redecking);
(d) Conduit crossing using boring;
(e) Boat ramps or launches within the existing footprint
(maintenance, repair, or replacement);
(f) Temporary or permanent stream gauges or scientific instruments;
(g) Boom (installation or maintenance);
(h) Existing overwater structure within the existing footprint, not
including marinas or marine terminals (maintenance or repair);
(i) Beaver dam work;
(j) Riparian habitat (maintenance or repair);
(k) Existing outfall (maintenance or repair);
(l) Aquaculture (maintenance or repair);
(m) Habitat freshwater beach creation (maintenance or repair);
(n) Shoreline armoring or bank protection (maintenance or repair);
(o) Breeding substrate (maintenance or repair);
(p) Large woody material (maintenance or repair);
(q) Wetland and estuarine habitat work (maintenance or repair);
(r) Dredging of less than fifty cubic yards (maintenance or
repair);
(s) Boat lifts or railway launches (maintenance or repair);
(t) Existing pilings (maintenance or repair);
(u) Pump water diversions and fish screens (maintenance or repair);
(v) Gravity water diversions and fish screens (maintenance or
repair);
(w) Tidegates (maintenance or repair); and
(x) Temporary water crossing structures installed and removed
within one season in fish-bearing waters.
(3) When assessing fees for permits under this section, the
department must categorize the following hydraulic projects as medium
complexity:
(a) Water crossing structures in fish-bearing waters (maintenance
or repair);
(b) Aquaculture;
(c) Habitat freshwater beach creation (new, replacement, or
removal);
(d) Shoreline armoring or bank protection of less than one hundred
feet in length (new, replacement, or removal);
(e) Jetties, dikes, or levees (maintenance or repair);
(f) Breeding substrate (new, replacement, or removal);
(g) Large woody material (removal, placement, or repositioning);
(h) Off channel, side channel, or in channel enhancement or
restoration work (maintenance or repair);
(i) Riparian habitat work (new, replacement, or removal);
(j) Bed modification excluding enhancement (maintenance or repair);
(k) Channel realignment in fish-bearing waters (maintenance or
repair);
(l) Conduit and cable work using trenching (new, replacement, or
removal);
(m) Dredging of less than fifty cubic yards (new);
(n) Fish passage barrier removal with replacement or retrofit using
methods such as baffles or log controls for passage through or over a
structure;
(o) Fish passage not associated with a water crossing structure
such as to bypass a natural barrier or a dam;
(p) Boat lifts and railway launches (new, replacement, and
removal);
(q) Boat ramps or launches outside of the footprint of any existing
(new, replacement, or removal);
(r) Work on pilings (new, replacement, or removal);
(s) Pump water diversions or fish screens (new, replacement, or
removal);
(t) Gravity water diversions or fish screens (new, replacement, or
removal);
(u) Outfalls (new, replacement, or removal);
(v) Tidegates (new, replacement, or removal);
(w) Mechanical aquatic plant control that is not a pamphlet
hydraulic project;
(x) Overwater structure outside of the footprint of any existing
structure, not including marinas or marine terminals (new or
replacement);
(y) Marinas or marine terminals (maintenance or repair);
(z) Dams not under jurisdiction of the federal energy regulatory
commission (maintenance or repair);
(aa) New water crossing structures in nonfish-bearing waters (new,
replacement, or removal); and
(bb) Temporary water crossing structures present for multiple
seasons in fish-bearing waters.
(4) When assessing fees for permits under this section, the
department must categorize the following hydraulic projects as high
complexity:
(a) Water crossing structures in fish-bearing waters (new,
replacement, removal, or modification);
(b) Shoreline armoring or bank protection of greater than one
hundred feet in length (new, replacement, or removal);
(c) Jetties, dikes, or levees (new, replacement, or removal);
(d) Off channel, side channel, or in channel enhancement or
restoration work (new, replacement, or removal);
(e) Wetland or estuarine habitat work (new, replacement, or
removal);
(f) Bed modification excluding enhancement (new, replacement, or
removal);
(g) Channel realignment in fish-bearing waters (new, replacement,
or removal);
(h) Dredging of more than fifty cubic yards (new, replacement,
removal, or maintenance);
(i) Fish passage barrier removal with replacement or retrofit using
methods such as baffles or log controls for passage through or over a
structure (new, replacement, or removal);
(j) Fish passage not associated with a water crossing structure
such as to bypass a natural barrier or a dam (new, replacement, or
removal);
(k) Marinas or marine terminals (new, replacement, or removal);
(l) Dams not under jurisdiction of the federal energy regulatory
commission (new, replacement, or removal);
(m) New project types not identified as low or medium complexity;
and
(n) Perpetual agriculture hydraulic projects.
(5) If the department receives applications for project types not
identified in subsections (2) through (4) of this section, it shall
categorize them as low, medium, or high complexity and charge fees
based on those categories consistent with the most similar project
types identified in subsections (2) through (4) of this section.
(6)(a) The department shall charge the following submittal fees:
(i) Fifty dollars for single site low complexity hydraulic project
permits and multiple site low complexity hydraulic project permits;
(ii) Seventy-five dollars for single site medium complexity
hydraulic project permits and multiple site medium complexity hydraulic
project permits; and
(iii) One hundred twenty-five dollars for single site high
complexity hydraulic project permits, multiple site high complexity
hydraulic project permits, and general permits.
(b) The department may not charge a submittal fee for permit
modifications.
(7) Unless the department establishes a lower fee consistent with
this section, a hydraulic project permit application must be assessed
one of the following processing fees:
(a) Seventy-five dollars for a single site low complexity hydraulic
project;
(b) One hundred seventy-five dollars for a single site medium
complexity hydraulic project;
(c) Five hundred seventy-five dollars for a single site high
complexity hydraulic project;
(d) For a multiple site permit, the applicable permit processing
fee assessed under this subsection for one of the hydraulic project
sites identified in the permit application, and twenty percent of the
applicable permit processing fee assessed under this subsection for
each additional site; and
(e) Four thousand eight hundred seventy-five dollars for a general
permit authorizing up to three types of hydraulic projects, and twenty
percent of the applicable permit processing fee assessed under this
subsection for each additional type of hydraulic project.
(8) In cases where hydraulic projects include work that falls into
more than one of the permit categories outlined in this section, the
fee charged must be based on the most complex component of the project.
(9) Unless the department establishes a lower fee consistent with
this section, all permit modifications must be assessed a seventy-five
dollar processing fee, except for those modified under RCW
77.55.021(10).
(10) The following hydraulic projects are exempt from all fees
listed under this section:
(a) Approved fish habitat enhancement projects authorized under RCW
77.55.181;
(b) Hydraulic projects approved under applicant-funded contracts
with the department that pay for the costs of processing those
projects;
(c) Projects approved under the cost-sharing program for fish
passage barriers authorized under RCW 76.13.150;
(d) If sections 201 through 203 of this act are enacted into law by
June 30, 2012, forest practices hydraulic projects;
(e) Pamphlet hydraulic projects; and
(f) Mineral prospecting and mining activities.
(11) The fees assessed in this section must be based on the scale
and complexity of the project and the relative effort required for
department staff to review the application, conduct site visits, and
consult with applicants as necessary. As such, at its discretion, the
department may reduce the fees charged to a person under this section
when the work required by the department to receive and process that
person's application or modify a permit is substantially less than
typically required. Decisions made by the department under this
subsection are not subject to appeal under RCW 77.55.021(8).
(12) The department shall refund fifty percent of the permit
processing fee to any person that properly applies for any permit or
permit modification under RCW 77.55.021 if the department:
(a) Fails to process the application or request within the
timelines required by RCW 77.55.021; or
(b) Denies the permit because the proposed project would adversely
affect fish life.
(13) The department shall refund one hundred percent of all fees
if:
(a) No permit is required for the proposed work; or
(b) The hydraulic project is exempted from substantial development
permit requirements under RCW 90.58.147 and the project proponent
provides to the department a copy of the letter documenting exemption
approval by the local government.
(14) On September 30th of each year, the department shall calculate
adjusted fees by the rate of inflation. The adjusted fees must be
calculated to the nearest dollar using the consumer price index for the
twelve months prior to each September 1st as calculated by the United
States department of labor. Each adjusted fee calculated under this
section takes effect on the following January 1st.
(15) All fees collected under this section must be deposited in the
hydraulic project approval account created in section 106 of this act.
NEW SECTION. Sec. 104 A new section is added to chapter 77.55
RCW to read as follows:
To ensure that all hydraulic project approvals provide for the
protection of fish life, by January 1, 2013, the department shall
develop and implement a program to monitor the effectiveness of the
approvals it grants under this chapter. For the purposes of this
chapter, effectiveness monitoring must evaluate if project standards
are adequate to protect overall fish life. If the department
identifies approvals that do not meet standards and provide for
protection of fish life, the department shall use adaptive management
principles to ensure protection under this chapter.
NEW SECTION. Sec. 105 (1) By September 1, 2015, the department
of fish and wildlife shall provide a report to the legislature that
includes: (a) A summary of the impact of fee collection under this act
on the department of fish and wildlife's hydraulic project approval
permit program; (b) recommendations to improve the department of fish
and wildlife's permit streamlining efforts and permit fee schedule; (c)
a review of relevant state, federal, and local natural resources and
environmental regulatory programs to determine if those programs have
the authority to and currently provide adequate fish protection
measures for hydraulic projects conducted above the ordinary high water
line; and (d) a summary of best management practices and the memorandum
of agreement process developed under section 117 of this act, as well
as recommendations for further opportunities for permitting
efficiencies with regards to hydraulic projects conducted above the
ordinary high water line.
(2) The department of fish and wildlife must develop the report in
consultation with affected stakeholders and submit the report to the
legislature consistent with RCW 43.01.036.
NEW SECTION. Sec. 106 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 submittal fees and permit processing 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 processing and
issuing hydraulic project approval decisions, compliance and
effectiveness monitoring, enforcement activities related to this
chapter, conducting informal appeals or participating in administrative
or judicial appeals of hydraulic project approval decisions, providing
technical assistance by biologists and environmental engineers on
project design and implementation that provides for the protection of
fish life, and for the associated management and administrative costs
incurred to implement and operate the hydraulic project approval
program.
Sec. 107 RCW 77.15.300 and 2000 c 107 s 239 are each amended to
read as follows:
(1) A person is guilty of unlawfully undertaking hydraulic project
activities if the person ((constructs any form of hydraulic project or
performs other work on a hydraulic project and:)):
(a) Fails to have a hydraulic project approval required under
chapter 77.55 RCW for such construction or work; or
(b) Violates any requirements or conditions of the hydraulic
project approval for such construction or work.
(2) Unlawfully undertaking hydraulic project activities is a gross
misdemeanor
(a) Constructs any form of hydraulic project or performs other work
on a hydraulic project that requires a hydraulic project approval under
chapter 77.55 RCW and fails to have a hydraulic project approval for
the construction or work;
(b) Violates any requirements or conditions of the hydraulic
project approval for the construction or other activities;
(c) Violates any compliance order issued under RCW 77.55.291; or
(d) Violates any department rule that identifies the conditions
under which a hydraulic project is approved.
(2) Violation of a compliance order under RCW 77.55.291 must be
punished as a separate offense from the underlying hydraulic code
violation.
(3) Unlawfully undertaking hydraulic project activities is a gross
misdemeanor.
(4) Notwithstanding the provisions of subsection (3) of this
section, the commission may by rule identify certain acts that violate
the hydraulic code as being of minimal impact to fish life, and may
classify these acts, on an individual basis, as infractions, punishable
under RCW 77.15.160 and chapter 7.84 RCW.
(5) 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.
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:
(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 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 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 would be categorized as a low complexity
hydraulic project under section 103 of this act;
(ii) Five thousand dollars for a violation of this chapter or rules
adopted under this chapter relating to a hydraulic project categorized
or that would be categorized as a medium complexity hydraulic project
under section 103 of this act; and
(iii) Ten thousand dollars for a violation of this chapter or rules
adopted under this chapter relating to a hydraulic project categorized
or that would be categorized as a high complexity hydraulic project
under section 103 of this act.
(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.
(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 106 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 A new section is added to chapter 77.55
RCW to read as follows:
The department shall make available to the public on its internet
site statistics on: (1) Civil enforcement actions taken and penalties
issued under RCW 77.55.291; and (2) criminal enforcement actions taken
under RCW 77.15.300. The statistics must include the number of civil
and criminal enforcement actions taken in each county. The department
must update the statistics at least twice a year.
Sec. 110 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, repair, or replacement 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) New, 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 fee for a general
permit provided in section 103 of this act.
NEW SECTION. Sec. 111 A new section is added to chapter 77.55
RCW to read as follows:
(1) By December 31, 2012, the department must make examples of
complete, high quality applications and the resulting issued hydraulic
project 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 hydraulic projects 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 a permit
applicant or permittee before making publicly available that applicant
or permittee's application or permit under this section and must work
cooperatively with the permit applicant or permittee to ensure that no
personal or proprietary information is made available.
Sec. 112 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.
NEW SECTION. Sec. 113 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. 114 A new section is added to chapter 77.55
RCW to read as follows:
This chapter may be known and cited as the hydraulic code.
NEW SECTION. Sec. 115 The fee provisions contained in section
103 of this act are prospective only. The department of fish and
wildlife may not charge fees for hydraulic project permits issued under
Title 77 RCW prior to the effective date of this section. However, if
a person requests modification of a hydraulic project permit that was
issued by the department of fish and wildlife prior to the effective
date of this section, the department of fish and wildlife shall charge
all applicable fees as provided in section 103 of this act.
NEW SECTION. Sec. 116 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, including applications for a general
permit.
NEW SECTION. Sec. 117 A new section is added to chapter 77.55
RCW to read as follows:
(1) The department and cities or counties are authorized to enter
into voluntary agreements pursuant to chapter 39.34 RCW for the purpose
of integrating state and local permitting of hydraulic projects
conducted above the ordinary high water line as described under RCW
77.55.021(1)(a)(ii).
(2) The department may only enter into an agreement with a city or
county where the director, after coordination with affected tribes,
determines that the city or county's environmental or natural resources
regulatory programs together with best management practices adopted by
the department under this section are capable of providing for the
protection of fish life equivalent with this chapter.
(3) An agreement under this section must, at minimum:
(a) Require the city or county to implement the best management
practices as needed to achieve the standard in subsection (2) of this
section for those hydraulic project types included in the agreement;
(b) Provide for oversight and monitoring by the department;
(c) Describe respective enforcement responsibilities;
(d) Provide assurances that the city or county will provide
adequate resources to implement the agreement; and
(e) Authorize the department to terminate the memorandum of
agreement if the county or city acts in a manner inconsistent with the
agreement.
(4)(a) By December 31, 2013, the department shall by rule adopt
best management practices that provide for the protection of fish life
for those hydraulic projects to be permitted under an agreement adopted
under this section.
(b) The department of fish and wildlife shall collaborate with city
and county governments, appropriate state agencies, tribal governments,
and other stakeholders to assist in the development of the best
management practices.
(5) A city or county acting under an agreement adopted under this
section operates under the authority of the department. The department
retains the ultimate authority for the protection of fish life.
(6) Hydraulic projects regulated under an agreement adopted under
this section are subject to effectiveness monitoring under section 104
of this act.
(7) A city or county's decision to enter into an agreement adopted
under this section is voluntary.
(a) An agreement adopted under this section need not include each
hydraulic project type conducted above the ordinary high water line as
described under RCW 77.55.021(1)(a)(ii). The department retains the
authority for the protection of fish life for those projects that are
not included in the agreement.
(b) A city or county may adopt fees necessary to recover costs for
permit review, but the fees shall be no greater than permit fees
authorized under section 103 of this act.
NEW SECTION. Sec. 118 A new section is added to chapter 77.55
RCW to read as follows:
An applicant may enter into a cost-reimbursement agreement with the
department under RCW 43.300.080 for the purpose of preapplication
project coordination. The department must convene a meeting with the
applicant and invite other regulatory agencies to attend. The
department shall facilitate discussions between the applicant and
regulatory agencies on regulatory requirements and methods to improve
the proposed project to allow prompt review and approval upon the
submittal of a complete application.
Sec. 119 RCW 43.21B.110 and 2010 c 210 s 7 and 2010 c 84 s 2 are
each reenacted and amended to read as follows:
(1) The hearings board shall only have jurisdiction to hear and
decide appeals from the following decisions of the department, the
director, local conservation districts, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, and the parks and recreation
commission:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, 88.46.090,
90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.
(b) Orders issued pursuant to RCW 18.104.043, 18.104.060,
43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070,
90.14.130, 90.46.250, 90.48.120, ((and)) 90.56.330, and 77.55.291.
(c) A final decision by the department or director made under
chapter 183, Laws of 2009.
(d) Except as provided in RCW 90.03.210(2), the issuance,
modification, or termination of any permit, certificate, or license by
the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal
permit, the denial of an application for a waste disposal permit, the
modification of the conditions or the terms of a waste disposal permit,
or a decision to approve or deny an application for a solid waste
permit exemption under RCW 70.95.300.
(e) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(f) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(g) Decisions of the department regarding waste-derived fertilizer
or micronutrient fertilizer under RCW 15.54.820, and decisions of the
department regarding waste-derived soil amendments under RCW 70.95.205.
(h) Decisions of local conservation districts related to the denial
of approval or denial of certification of a dairy nutrient management
plan; conditions contained in a plan; application of any dairy nutrient
management practices, standards, methods, and technologies to a
particular dairy farm; and failure to adhere to the plan review and
approval timelines in RCW 90.64.026.
(i) Any other decision by the department or an air authority which
pursuant to law must be decided as an adjudicative proceeding under
chapter 34.05 RCW.
(j) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(k) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(l) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW or decisions to enter into an agreement authorized
under section 117 of this act.
(m) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(n) Decisions of a state agency that is an authorized public entity
under RCW 79.100.010 to take temporary possession or custody of a
vessel or to contest the amount of reimbursement owed that are
reviewable under RCW 79.100.120.
(2) The following hearings shall not be conducted by the hearings
board:
(a) Hearings required by law to be conducted by the shorelines
hearings board pursuant to chapter 90.58 RCW.
(b) Hearings conducted by the department pursuant to RCW 70.94.332,
70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(((e) Appeals of decisions by the department as provided in chapter
43.21L RCW.))
(3) Review of rules and regulations adopted by the hearings board
shall be subject to review in accordance with the provisions of the
administrative procedure act, chapter 34.05 RCW.
NEW SECTION. Sec. 120 A new section is added to chapter 35.21
RCW to read as follows:
A city may enter into a voluntary agreement with the department of
fish and wildlife under chapter 39.34 RCW for the purpose of
integrating state and local permitting of hydraulic projects conducted
above the ordinary high water line as authorized under section 117 of
this act.
NEW SECTION. Sec. 121 A new section is added to chapter 36.01
RCW to read as follows:
A county may enter into a voluntary agreement with the department
of fish and wildlife under chapter 39.34 RCW for the purpose of
integrating state and local permitting of hydraulic projects conducted
above the ordinary high water line as authorized under section 117 of
this act.
NEW SECTION. Sec. 122 A new section is added to chapter 39.34
RCW to read as follows:
A city or county may enter into a voluntary agreement with the
department of fish and wildlife under this chapter for the purpose of
integrating state and local permitting of hydraulic projects conducted
above the ordinary high water line as authorized under section 117 of
this act.
NEW SECTION. Sec. 123 The director of fish and wildlife shall
adopt any rules required or deemed necessary to implement sections 101
through 122 of this act.
NEW SECTION. Sec. 124 Section 101 through 110, 112, 115 through
118, and 120 through 122 of this act expire July 1, 2016.
NEW SECTION. Sec. 125 Section 119 of this act expires June 30,
2019.
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 July 1, 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; 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 July 1, 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 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 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 July 1,
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 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 submitted
under chapter 76.09 RCW.
NEW SECTION. Sec. 218 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 update
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) Reduce duplication in the checklist that has occurred due to
subsequent amendments to chapter 43.21C RCW and chapter 197-11 WAC that
have occurred since the checklist was last updated; and
(ii) Not include any new subjects into the scope of the checklist.
(d) Until the completion of the rule making required under this
section, any actions located within a city or a city's urban growth
area may apply the highest categorical exemption levels authorized
under WAC 197-11-800, 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) By December 31, 2013, the department of ecology shall update
the thresholds for all other project actions not specified in
subsection (2) of this section. 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) For both rule-making processes under subsections (2) and (3) of
this section, the department of ecology shall:
(a) 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 assist in updating
the environmental checklist and updating the thresholds for other
project actions; and
(b) Consider opportunities to ensure that state agencies and other
interested parties can continue to receive notice about projects of
interest through a means other than through notice under chapter 43.21C
RCW.
(5) This section expires July 31, 2013.
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) 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.
Sec. 303 RCW 43.21C.087 and 1974 ex.s. c 179 s 14 are each
amended to read as follows:
(1) The department of ecology shall prepare a list of all filings
required by RCW 43.21C.080 each week and shall make such list available
to any interested party. The list of filings shall include a brief
description of the governmental action and the project involved in such
action, along with the location of where information on the project or
action may be obtained. Failure of the department to include any
project or action shall not affect the running of the statute of
limitations provided in RCW 43.21C.080.
(2) The department of ecology shall accept electronic submittal of
all required filings from lead agencies under this section.
NEW SECTION. Sec. 304 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) Are subsequent or implementing projects for the proposals
listed in (b) of this subsection;
(d) Are located within an urban growth area designated pursuant to
RCW 36.70A.110;
(e) 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
(f) 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 or a specific geographical area that is
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 ordinance or resolution adopted under this subsection.
(3)(a) A county, city, or town shall determine during permit review
whether a proposal 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) Except for impacts that are specifically deferred for
consideration at the project level, 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. The determination of consistency, and the
adequacy of any environmental review that was specifically deferred, is
subject to any administrative appeal that the county, city, or town
provides consistent with RCW 36.70B.060.
Sec. 305 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) and section 301 of
this act. 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 new:
(i) Residential development; or
(ii) Mixed-use development;
(b) It does not exempt government action related to development
that would be for a use or would exceed the density or intensity of use
called for in the goals and policies of the applicable comprehensive
plan; and
(c)(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 has prepared an environmental impact statement for
the area where the exemption created by this section applies if the
underlying environmental impact statement considered the proposed use
or intensity of use.
(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) and section 301 of this act that
provide exceptions to the use of categorical exemptions adopted by the
department.
NEW SECTION. Sec. 306 A new section is added to chapter 43.21C
RCW to read as follows:
(1) This chapter does not apply to projects designed exclusively to
restore natural wildlife or fishery habitats or projects that serve as
environmental mitigation for other projects, except for:
(a) Projects that are stand-alone commercial wetland mitigation
banks located on more than five acres;
(b) Projects that are fish hatcheries; and
(c) Projects that are located on, or that would affect lands
designated as, agricultural lands of long-term commercial significance
pursuant to chapter 36.70A RCW.
(2) The lead agency permitting a project that qualifies for an
exemption under this section must still consult with the department of
archaeology and historic preservation to evaluate any potential impacts
to historic or archaeological sites.
NEW SECTION. Sec. 307 A new section is added to chapter 43.21C
RCW to read as follows:
(1) The legislature recognizes that a county, city, or town that
prepares a nonproject environmental review under RCW 43.21C.030(2),
including reviews necessary for compliance with RCW 43.21C.420, must
endure a substantial financial burden.
(2) A county, city, or town may recover reasonable expenses
incurred by the preparation of a nonproject environmental impact
statement prepared under RCW 43.21C.030(2):
(a) Through access to financial assistance under RCW 36.70A.490;
(b) With funding from private sources; and
(c) By the assessment of a reasonable and proportionate fee upon
subsequent development that is consistent with the plan and development
regulations adopted under RCW 43.21C.030(2), as long as the development
makes use of and benefits from, as described in RCW 43.21C.030(2), the
nonproject environmental review prepared by the county, city, or town.
(3) In order to collect fees under this section, the county, city,
or town must enact an ordinance that sets forth objective standards for
determining how the fees to be imposed upon each development will be
proportionate to the impacts of each development and to the benefits
accruing to each development from the nonproject environmental review.
(4) Any assessment of fees collected under this section from
subsequent development may be used to reimburse funding received from
private sources.
(5)(a) Any disagreement about the reasonableness 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.
(b) The fee assessed by the county, city, or town may be paid with
the written stipulation "paid under protest" and, if the city 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 appeal process.
Sec. 308 RCW 43.21C.420 and 2010 c 153 s 2 are each amended to
read as follows:
(1) Cities with a population greater than five thousand, in
accordance with their existing comprehensive planning and development
regulation authority under chapter 36.70A RCW, and in accordance with
this section, may adopt optional elements of their comprehensive plans
and optional development regulations that apply within specified
subareas of the cities, that are either:
(a) Areas designated as mixed-use or urban centers in a land use or
transportation plan adopted by a regional transportation planning
organization; or
(b) Areas within one-half mile of a major transit stop that are
zoned to have an average minimum density of fifteen dwelling units or
more per gross acre.
(2) Cities located on the east side of the Cascade mountains and
located in a county with a population of two hundred thirty thousand or
less, in accordance with their existing comprehensive planning and
development regulation authority under chapter 36.70A RCW, and in
accordance with this section, may adopt optional elements of their
comprehensive plans and optional development regulations that apply
within the mixed-use or urban centers. The optional elements of their
comprehensive plans and optional development regulations must enhance
pedestrian, bicycle, transit, or other nonvehicular transportation
methods.
(3) A major transit stop is defined as:
(a) A stop on a high capacity transportation service funded or
expanded under the provisions of chapter 81.104 RCW;
(b) Commuter rail stops;
(c) Stops on rail or fixed guideway systems, including transitways;
(d) Stops on bus rapid transit routes or routes that run on high
occupancy vehicle lanes; or
(e) Stops for a bus or other transit mode providing fixed route
service at intervals of at least thirty minutes during the peak hours
of operation.
(4)(a) A city that elects to adopt such an optional comprehensive
plan element and optional development regulations shall prepare a
nonproject environmental impact statement, pursuant to RCW 43.21C.030,
assessing and disclosing the probable significant adverse environmental
impacts of the optional comprehensive plan element and development
regulations and of future development that is consistent with the plan
and regulations.
(b) At least one community meeting must be held on the proposed
subarea plan before the scoping notice for such a nonproject
environmental impact statement is issued. Notice of scoping for such
a nonproject environmental impact statement and notice of the community
meeting required by this section must be mailed to all property owners
of record within the subarea to be studied, to all property owners
within one hundred fifty feet of the boundaries of such a subarea, to
all affected federally recognized tribal governments whose ceded area
is within one-half mile of the boundaries of the subarea, and to
agencies with jurisdiction over the future development anticipated
within the subarea.
(c) In cities with over five hundred thousand residents, notice of
scoping for such a nonproject environmental impact statement and notice
of the community meeting required by this section must be mailed to all
small businesses as defined in RCW 19.85.020, and to all community
preservation and development authorities established under chapter
43.167 RCW, located within the subarea to be studied or within one
hundred fifty feet of the boundaries of such subarea. The process for
community involvement must have the goal of fair treatment and
meaningful involvement of all people with respect to the development
and implementation of the subarea planning process.
(d) The notice of the community meeting must include general
illustrations and descriptions of buildings generally representative of
the maximum building envelope that will be allowed under the proposed
plan and indicate that future appeals of proposed developments that are
consistent with the plan will be limited. Notice of the community
meeting must include signs located on major travel routes in the
subarea. If the building envelope increases during the process,
another notice complying with the requirements of this section must be
issued before the next public involvement opportunity.
(e) Any person that has standing to appeal the adoption of this
subarea plan or the implementing regulations under RCW 36.70A.280 has
standing to bring an appeal of the nonproject environmental impact
statement required by this subsection.
(f) Cities with over five hundred thousand residents shall prepare
a study that accompanies or is appended to the nonproject environmental
impact statement, but must not be part of that statement, that analyzes
the extent to which the proposed subarea plan may result in the
displacement or fragmentation of existing businesses, existing
residents, including people living with poverty, families with
children, and intergenerational households, or cultural groups within
the proposed subarea plan. The city shall also discuss the results of
the analysis at the community meeting.
(g) As an incentive for development authorized under this section,
a city shall consider establishing a transfer of development rights
program in consultation with the county where the city is located, that
conserves county-designated agricultural and forest land of long-term
commercial significance. If the city decides not to establish a
transfer of development rights program, the city must state in the
record the reasons for not adopting the program. The city's decision
not to establish a transfer of development rights program is not
subject to appeal. Nothing in this subsection (4)(g) may be used as a
basis to challenge the optional comprehensive plan or subarea plan
policies authorized under this section.
(5)(a) Until July 1, 2018, a proposed development that is
consistent with the optional comprehensive plan or subarea plan
policies and development regulations adopted under subsection (1) or
(2) of this section and that is environmentally reviewed under
subsection (4) of this section may not be challenged in administrative
or judicial appeals for noncompliance with this chapter as long as a
complete application for such a development that vests the application
or would later lead to vested status under city or state law is
submitted to the city within a time frame established by the city, but
not to exceed ten years from the date of issuance of the final
environmental impact statement.
(b) After July 1, 2018, the immunity from appeals under this
chapter of any application that vests or will vest under this
subsection or the ability to vest under this subsection is still valid,
provided that the final subarea environmental impact statement is
issued by July 1, 2018. ((After July 1, 2018, a city may continue to
collect reimbursement fees under subsection (6) of this section for the
proportionate share of a subarea environmental impact statement issued
prior to July 1, 2018.))
(6) ((It is recognized that a city that prepares a nonproject
environmental impact statement under subsection (4) of this section
must endure a substantial financial burden. A city may recover its
reasonable expenses of preparation of a nonproject environmental impact
statement prepared under subsection (4) of this section through access
to financial assistance under RCW 36.70A.490 or funding from private
sources. In addition, a city is authorized to recover a portion of its
reasonable expenses of preparation of such a nonproject environmental
impact statement by the assessment of reasonable and proportionate fees
upon subsequent development that is consistent with the plan and
development regulations adopted under subsection (5) of this section,
as long as the development makes use of and benefits [from], as
described in subsection (5) of this section, from the nonproject
environmental impact statement prepared by the city. Any assessment
fees collected from subsequent development may be used to reimburse
funding received from private sources. In order to collect such fees,
the city must enact an ordinance that sets forth objective standards
for determining how the fees to be imposed upon each development will
be proportionate to the impacts of each development and to the benefits
accruing to each development from the nonproject environmental impact
statement. Any disagreement about the reasonableness 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. The fee assessed by
the city may be paid with the written stipulation "paid under protest"
and if the city 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 appeal
process.)) If a proposed development is inconsistent with the optional
comprehensive plan or subarea plan policies and development regulations
adopted under subsection (1) of this section, the city shall require
additional environmental review in accordance with this chapter.
(7)
NEW SECTION. Sec. 309 A new section is added to chapter 43.21C
RCW to read as follows:
(1)(a) Except as otherwise provided in this subsection (1), the
proposed actions contained in subsections (2) and (3) of this section
are categorically exempt from the requirements of this chapter. If a
proposed action is located in more than one county, city, or town, the
lower of the agencies' adopted categorical exemption levels controls,
regardless of which agency is the lead agency.
(b) An ordinance or resolution may be adopted by a city, county, or
town to establish lower exemption levels for specific geographic areas
within the city, county, or town and remove the otherwise exempt
proposed actions identified in subsections (2) and (3) of this section
from being considered exempt.
(2) Except as provided in subsection (1)(b) of this section, the
following actions are categorically exempt from the requirements of
this chapter if the proposed action is located within an urban growth
area designated pursuant to RCW 36.70A.110. The following are
nonproject actions:
(a) 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;
(b) 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;
(c) Amendments to development regulations that, upon implementation
of a project action, will provide increased environmental protection,
limited to the following:
(i) Increased protections for critical areas, such as enhanced
buffers or setbacks;
(ii) Increased vegetation retention or decreased impervious surface
areas in shoreline jurisdiction; and
(iii) Increased vegetation retention or decreased impervious
surface areas in critical areas;
(d) Amendments to technical codes adopted by a county, city, or
town to ensure consistency with minimum standards contained in state
law, including the following:
(i) Building codes required by chapter 19.27 RCW;
(ii) Energy codes required by chapter 19.27A RCW; and
(iii) Electrical codes required by chapter 19.28 RCW.
(3) Except as provided in subsection (1)(b) of this section, the
following types of construction are categorically exempt from the
requirements of this chapter if the proposed action is located outside
an urban growth area designated pursuant to RCW 36.70A.110. The
following are nonproject actions:
(a) 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;
(b) 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;
(c) Amendments to development regulations that, upon implementation
of a project action, will provide increased environmental protection,
limited to the following:
(i) Increased protections for critical areas such as enhanced
buffers or setbacks;
(ii) Increased vegetation retention or decreased impervious surface
areas in shoreline jurisdiction; and
(iii) Increased vegetation retention or decreased impervious
surface areas in critical areas;
(d) Amendments to technical codes adopted by a county, city, or
town to ensure consistency with minimum standards contained in state
law, including the following:
(i) Building codes required by chapter 19.27 RCW;
(ii) Energy codes required by chapter 19.27A RCW; and
(iii) Electrical codes required by chapter 19.28 RCW.
NEW SECTION. Sec. 310 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 satisfy the requirements of the
checklist by identifying instances where questions on the checklist are
adequately covered by a locally adopted ordinance, development
regulation, land use plan, or other legal authority.
(2) 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.
(3) 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.
(4) Nothing in this section authorizes a lead agency to ignore or
delete a question on the checklist.
(5) Nothing in this section affects the appeal provisions provided
in this chapter.
Sec. 311 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. 312 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.
NEW SECTION. Sec. 313 A new section is added to chapter 82.02
RCW to read as follows:
(1) The legislature finds that:
(a) Detailed environmental analysis integrated with comprehensive
plans, subarea plans, and development regulations will facilitate
planning for and managing growth, allow greater protection of the
environment, and benefit both the general public and private property
owners;
(b) Compact development in urban growth areas, or transfer of
development rights programs, will assist in the conservation of rural,
agricultural, and forest land by redirecting growth from this land to
areas designated for compact development or receiving areas in cities
and towns where growth should occur;
(c) Cities and towns planning for increased growth in receiving
areas under chapter 43.362 RCW must comply with chapter 43.21C RCW;
(d) Planning for compact or increased growth in urban growth areas,
or receiving areas under chapter 43.362 RCW in compliance with chapter
43.21C RCW, presents a financial burden on cities and towns;
(e) Planning for compact or increased growth in urban growth areas,
or receiving areas under chapter 43.362 RCW in compliance with chapter
43.21C RCW, should be encouraged to ensure that the quality of life in
receiving neighborhoods and the protection of environmental values over
time are maintained by providing financial assistance through the
growth management planning and environmental review fund created in RCW
36.70A.490;
(f) Access to financial assistance through the growth management
planning and environmental review fund created in RCW 36.70A.490 may be
increased by allowing the fund to become a revolving loan program
rather than only a grant program; and
(g) Counties, cities, and towns will have the ability to repay
loans from the growth management planning and environmental review fund
created in RCW 36.70A.490, or recoup their own costs associated with
environmental review conducted at a comprehensive plan or subarea plan
level, with fees they collect from developers who will benefit from the
environmental review that the city or county has already conducted
under chapter 43.21C RCW on a comprehensive plan or subarea plan, or in
conjunction with the designation of a receiving area under chapter
43.362 RCW, and that addresses the impacts of compact development or
projects using transferable development rights.
(2) Counties, cities, and towns that conduct detailed environmental
review under chapter 43.21C RCW, integrated with a comprehensive plan
or subarea plan within urban growth areas, are authorized to impose
environmental fees on development activity as part of the financing for
environmental review conducted under chapter 43.21C RCW on a
comprehensive plan or subarea plan.
(3) The environmental fees:
(a) May only be imposed for environmental review costs that have
been identified as reasonably related to the new development;
(b) May not exceed the proportionate share of the costs of
environmental review conducted for a comprehensive plan or subarea
plan; and
(c) May, if applicable, be used to repay a loan from the growth
management planning and environmental review fund created in RCW
36.70A.490.
Sec. 314 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, section 313 of this act,
and RCW 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))) section 307 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.
Sec. 315 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 304 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. 316 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 and section
301 of this act shall be accorded substantial deference in the
interpretation of this chapter.
Sec. 317 RCW 36.70A.280 and 2011 c 360 s 17 are each amended to
read as follows:
(1) The growth management hearings board shall hear and determine
only those petitions alleging either:
(a) That, except as provided otherwise by this subsection, a state
agency, county, or city planning under this chapter is not in
compliance with the requirements of this chapter, chapter 90.58 RCW as
it relates to the adoption of shoreline master programs or amendments
thereto, or chapter 43.21C RCW as it relates to plans, development
regulations, or amendments, adopted under RCW 36.70A.040 or chapter
90.58 RCW((. Nothing in this subsection authorizes the board to hear
petitions alleging noncompliance with RCW 36.70A.5801));
(b) That the twenty-year growth management planning population
projections adopted by the office of financial management pursuant to
RCW 43.62.035 should be adjusted;
(c) That the approval of a work plan adopted under RCW
36.70A.735(1)(a) is not in compliance with the requirements of the
program established under RCW 36.70A.710;
(d) That regulations adopted under RCW 36.70A.735(1)(b) are not
regionally applicable and cannot be adopted, wholly or partially, by
another jurisdiction; or
(e) That a department certification under RCW 36.70A.735(1)(c) is
erroneous.
(2) A petition may be filed only by: (a) The state, or a county or
city that plans under this chapter; (b) ((a person who has participated
orally or in writing before the county or city regarding the matter on
which a review is being requested; (c))) a person who is certified by
the governor within sixty days of filing the request with the board; or
(((d))) (c) a person qualified pursuant to RCW 34.05.530.
(3) For purposes of this section "person" means any individual,
partnership, corporation, association, state agency, governmental
subdivision or unit thereof, or public or private organization or
entity of any character.
(4) ((To establish participation standing under subsection (2)(b)
of this section, a person must show that his or her participation
before the county or city was reasonably related to the person's issue
as presented to the board.)) When considering a possible adjustment to a growth management
planning population projection prepared by the office of financial
management, the board shall consider the implications of any such
adjustment to the population forecast for the entire state.
(5)
The rationale for any adjustment that is adopted by the board must
be documented and filed with the office of financial management within
ten working days after adoption.
If adjusted by the board, a county growth management planning
population projection shall only be used for the planning purposes set
forth in this chapter and shall be known as the "board adjusted
population projection." None of these changes shall affect the
official state and county population forecasts prepared by the office
of financial management, which shall continue to be used for state
budget and planning purposes.