BILL REQ. #:  H-3655.2 

READ FIRST TIME 01/29/14.   

     AN ACT Relating to fish barrier removals; amending RCW 77.55.181, 77.95.180, 77.95.170, 77.95.160, 19.27.490, 35.21.404, 35.63.230, 35A.21.290, 35A.63.250, 36.70.982, 36.70.992, 36.70A.460, and 43.21C.0382; adding a new section to chapter 77.95 RCW; creating a new section; and providing an expiration date.

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

Sec. 1   RCW 77.55.181 and 2010 c 210 s 29 are each amended to read as follows:
     (1)(a) In order to receive the permit review and approval process created in this section, a fish habitat enhancement project must meet the criteria under (((a) and (b) of)) this ((subsection:
     (a) A fish habitat enhancement project)) section and must be a project to accomplish one or more of the following tasks:
     (i) Elimination of human-made or caused fish passage barriers, including culvert repair and replacement;
     (ii) Restoration of an eroded or unstable streambank employing the principle of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water; or
     (iii) Placement of woody debris or other instream structures that benefit naturally reproducing fish stocks.
     (b) The department shall develop size or scale threshold tests to determine if projects accomplishing any of these tasks should be evaluated under the process created in this section or under other project review and approval processes. A project proposal shall not be reviewed under the process created in this section if the department determines that the scale of the project raises concerns regarding public health and safety((; and)).
     (((b))) (c) A fish habitat enhancement project must be approved in one of the following ways in order to receive the permit review and approval process created in this section:
     (i) By the department pursuant to chapter 77.95 or 77.100 RCW;
     (ii) By the sponsor of a watershed restoration plan as provided in chapter 89.08 RCW;
     (iii) By the department as a department-sponsored fish habitat enhancement or restoration project;
     (iv) Through the review and approval process for the jobs for the environment program;
     (v) Through the review and approval process for conservation district-sponsored projects, where the project complies with design standards established by the conservation commission through interagency agreement with the United States fish and wildlife service and the natural resource conservation service;
     (vi) Through a formal grant program established by the legislature or the department for fish habitat enhancement or restoration; ((and))
     (vii) Through the department of transportation's environmental retrofit program as a stand-alone fish passage barrier correction project;
     (viii) Through a local, state, or federally approved fish barrier removal grant program designed to assist local governments in implementing stand-alone fish passage barrier corrections; and
     (ix) Through other formal review and approval processes established by the legislature.
     (2) Fish habitat enhancement projects meeting the criteria of subsection (1) of this section are expected to result in beneficial impacts to the environment. Decisions pertaining to fish habitat enhancement projects meeting the criteria of subsection (1) of this section and being reviewed and approved according to the provisions of this section are not subject to the requirements of RCW 43.21C.030(2)(c).
     (3)(a) A permit is required for projects that meet the criteria of subsection (1) of this section and are being reviewed and approved under this section. An applicant shall use a joint aquatic resource permit application form developed by the office of regulatory assistance to apply for approval under this chapter. On the same day, the applicant shall provide copies of the completed application form to the department and to each appropriate local government.
     (b) Local governments shall accept the application as notice of the proposed project. The department shall provide a fifteen-day comment period during which it will receive comments regarding environmental impacts.
     (c) Within forty-five days, the department shall either issue a permit, with or without conditions, deny approval, or make a determination that the review and approval process created by this section is not appropriate for the proposed project. The department shall base this determination on identification during the comment period of adverse impacts that cannot be mitigated by the conditioning of a permit.
     (d) If the department determines that the review and approval process created by this section is not appropriate for the proposed project, the department shall notify the applicant and the appropriate local governments of its determination. The applicant may reapply for approval of the project under other review and approval processes.
     (((b))) (e) Any person aggrieved by the approval, denial, conditioning, or modification of a permit under this section may appeal the decision as provided in RCW 77.55.021(((4))) (8).
     (4) No local government may require permits or charge fees for fish habitat enhancement projects that meet the criteria of subsection (1) of this section and that are reviewed and approved according to the provisions of this section.
     (5) The state is not liable for any adverse impacts resulting from a fish enhancement project that meets the criteria of this section and has been permitted by the department.

Sec. 2   RCW 77.95.180 and 2010 1st sp.s. c 7 s 83 are each amended to read as follows:
     (1)(a) To maximize available state resources, the department and the department of transportation ((shall)) must work in partnership to identify ((cooperative)) and complete projects to eliminate fish passage barriers caused by state roads and highways.
     (b) The partnership between the department and the department of transportation must be based on the principle of maximizing habitat recovery through a coordinated investment strategy that, to the maximum extent practical and allowable, prioritizes opportunities: To correct multiple fish barriers in whole streams rather than through individual, isolated projects; and to correct barriers located furthest downstream in a stream system. Examples of this principle include:
     (i) Coordinating with all relevant state agencies and local governments to maximize the habitat recovery value of the investments made by the state to correct fish passage barriers;
     (ii) Maximizing the habitat recovery value of investments made by public and private forest landowners through the road maintenance and abandonment planning process outlined in the forest practices rules, as that term is defined in RCW 76.09.020;
     (iii) Recognizing that many of the barriers owned by the state are located in the same stream systems as barriers that are the responsibility of cities and counties with potentially limited financial resources for correction and that state-local partnership opportunities may exist to address these barriers; and
     (iv) Recognizing the need to continue investments in the family forest fish passage program created pursuant to RCW 76.13.150 and other efforts to address fish passage barriers owned by private parties that are in the same stream systems as barriers owned by public entities.
     (2) The department ((of transportation)) shall also provide engineering and other technical services to assist ((regional fisheries enhancement groups)) nonstate barrier owners with fish passage barrier removal projects, provided that the barrier removal projects have been identified as a priority by the department ((of fish and wildlife)) and the department ((of transportation)) has received an appropriation to continue ((the)) that component of a fish barrier removal program.
     (3) Nothing in this section is intended to:
     (a) Alter the process and prioritization methods used in the implementation of the forest practices rules, as that term is defined in RCW 76.09.020, or the family forest fish passage program, created pursuant to RCW 76.13.150, that provides public cost assistance to small forest landowners associated with the road maintenance and abandonment processes; or
     (b) Prohibit, delay, or otherwise involve fish barrier projects undertaken by the department of transportation or another state agency that are a component of an overall transportation improvement project or that are being undertaken as a direct result of state law, federal law, or a court order. However, the department of transportation or another state agency is required to work in partnership with the fish passage barrier removal board created in RCW 77.95.160 in the scheduling, staging, and implementation of these projects.

Sec. 3   RCW 77.95.170 and 1999 c 242 s 4 are each amended to read as follows:
     (1) The department ((of transportation and the department of fish and wildlife)) may ((administer and)) coordinate with the recreation and conservation office in the administration of all state grant programs specifically designed to assist state agencies, ((local governments,)) private landowners, tribes, organizations, and volunteer groups in identifying and removing impediments to salmonid fish passage. The transportation improvement board may administer all grant programs specifically designed to assist cities, counties, and other units of local governments with fish passage barrier corrections associated with transportation projects. All grant programs must be administered and be consistent with the following:
     (a) Salmonid-related corrective projects, inventory, assessment, and prioritization efforts;
     (b) Salmonid projects subject to a competitive application process; and
     (c) A minimum dollar match rate that is consistent with the funding authority's criteria. If no funding match is specified, a match amount of at least twenty-five percent per project is required. For local, private, and volunteer projects, in-kind contributions may be counted toward the match requirement.
     (2) Priority shall be given to projects that ((immediately increase access to available and improved spawning and rearing habitat for depressed, threatened, and endangered stocks. Priority shall also be given to project applications that are coordinated with other efforts within a watershed)) match the principles provided in RCW 77.95.180.
     (3) ((Except for projects administered by the transportation improvement board,)) All projects subject to this section shall be reviewed and approved by the fish passage barrier removal ((task force)) board created in RCW 77.95.160 or an alternative oversight committee designated by the state legislature.
     (4) Other agencies that administer natural resource-based grant programs ((that may include fish passage barrier removal projects)) shall use fish passage selection criteria that are consistent with this section when those programs are addressing fish passage barrier removal projects.
     (5)(a) The ((departments of transportation and fish and wildlife)) department shall establish a centralized database directory of all fish passage barrier information. The database directory must include, but is not limited to, existing fish passage inventories, fish passage projects, grant program applications, and other databases. These data must be used to coordinate and assist in habitat recovery and project mitigation projects.
     (b) The department must develop a barrier inventory training program that qualifies participants to perform barrier inventories and develop data that enhance the centralized database. The department may decide the qualifications for participation. However, employees and volunteers of conservation districts and regional salmon recovery groups must be given priority consideration.

Sec. 4   RCW 77.95.160 and 2000 c 107 s 110 are each amended to read as follows:
     (1) The department ((and the department of transportation)) shall ((convene)) maintain a fish passage barrier removal ((task force)) board. ((The task force shall consist of one representative each from the department, the department of transportation, the department of ecology, tribes, cities, counties, a business organization, an environmental organization, regional fisheries enhancement groups, and other interested entities as deemed appropriate by the cochairs. The persons representing the department and the department of transportation shall serve as cochairs of the task force and shall appoint members to the task force. The task force shall make recommendations to expand the program in RCW 77.95.180)) The board must be composed of a representative from the department, the department of transportation, cities, counties, the governor's salmon recovery office, tribal governments, and the department of natural resources. The representative of the department must serve as chair of the board and may expand the membership of the board to representatives of other governments, stakeholders, and interested entities.
     (2)(a) The duty of the board is to identify and expedite the removal of human-made or caused impediments to anadromous fish passage in the most efficient manner practical((. Program)) through the development of a coordinated approach and schedule that identifies and prioritizes the projects necessary to eliminate fish passage barriers caused by state and local roads and highways and barriers owned by private parties.
     (b) The coordinated approach must address fish passage barrier removals in all areas of the state in a manner that is consistent with a recognition that scheduling and prioritization is necessary.
     (c) The board must coordinate and mutually share information, when appropriate, with:
     (i) Other fish passage correction programs, including local salmon recovery plan implementation efforts through the governor's salmon recovery office;
     (ii) The applicable conservation districts when developing schedules and priorities within set geographic areas or counties; and
     (iii) The recreation and conservation office to ensure that barrier removal methodologies are consistent with, and maximizing the value of, other salmon recovery efforts and habitat improvements that are not primarily based on the removal of barriers.
     (d) Recommendations ((shall)) must include ((a)) proposed funding mechanisms and other necessary mechanisms and methodologies to coordinate ((and prioritize)) state, tribal, local, and volunteer barrier removal efforts within each water resource inventory area and satisfy the principles of RCW 77.95.180. To the degree practicable, the board must utilize the database created in RCW 77.95.170 and information on fish barriers developed by conservation districts to guide methodology development.
     (e) When developing a prioritization methodology under this section, the board shall consider:
     (i) Projects benefiting depressed, threatened, and endangered stocks;
     (ii) Projects providing access to available and high quality spawning and rearing habitat;
     (iii) Correcting the lowest barriers within the stream first;
     (iv) Whether an existing culvert is a full or partial barrier;
     (v) Projects that are coordinated with other adjacent barrier removal projects; and
     (vi) Projects that address replacement of infrastructure associated with flooding, erosion, or other environmental damage. ((A priority shall be given to projects that immediately increase access to available and improved spawning and rearing habitat for depressed, threatened, and endangered stocks. The department or the department of transportation may contract with cities and counties to assist in the identification and removal of impediments to anadromous fish passage.))
     (f) The board may not make decisions on fish passage standards or categorize as impassible culverts or other infrastructure developments that have been deemed passable by the department.

NEW SECTION.  Sec. 5   A new section is added to chapter 77.95 RCW to read as follows:
     The department may contract with cities and counties to assist in the identification and removal of impediments to fish passage.

NEW SECTION.  Sec. 6   (1) The department of fish and wildlife must initiate contact with the United States army corps of engineers, the national oceanic and atmospheric administration, and, if necessary, the United States fish and wildlife service to explore the feasibility of bundling multiple transportation-related fish barrier removal projects under any available nationwide permits for the purpose of achieving streamlined federal permitting with a reduced processing time.
     (2) The department of fish and wildlife must report back to the legislature, consistent with RCW 43.01.036, by October 31, 2016, summarizing the information gathered and any progress made towards using the bundling concept to streamline permitting for transportation-related fish barrier removal projects.
     (3) This section expires June 30, 2017.

Sec. 7   RCW 19.27.490 and 2003 c 39 s 11 are each amended to read as follows:
     A fish habitat enhancement project meeting the criteria of RCW ((77.55.290(1))) 77.55.181 is not subject to grading permits, inspections, or fees and shall be reviewed according to the provisions of RCW ((77.55.290)) 77.55.181.

Sec. 8   RCW 35.21.404 and 2003 c 39 s 14 are each amended to read as follows:
     A city or town is not liable for adverse impacts resulting from a fish enhancement project that meets the criteria of RCW ((77.55.290)) 77.55.181 and has been permitted by the department of fish and wildlife.

Sec. 9   RCW 35.63.230 and 2003 c 39 s 15 are each amended to read as follows:
     A permit required under this chapter for a watershed restoration project as defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450 through 89.08.510. A fish habitat enhancement project meeting the criteria of RCW ((77.55.290(1))) 77.55.181 shall be reviewed and approved according to the provisions of RCW ((77.55.290)) 77.55.181.

Sec. 10   RCW 35A.21.290 and 2003 c 39 s 16 are each amended to read as follows:
     A code city is not liable for adverse impacts resulting from a fish enhancement project that meets the criteria of RCW ((77.55.290)) 77.55.181 and has been permitted by the department of fish and wildlife.

Sec. 11   RCW 35A.63.250 and 2003 c 39 s 17 are each amended to read as follows:
     (1) A permit required under this chapter for a watershed restoration project as defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450 through 89.08.510.
     (2) A fish habitat enhancement project meeting the criteria of RCW ((77.55.290(1))) 77.55.181 shall be reviewed and approved according to the provisions of RCW ((77.55.290)) 77.55.181.

Sec. 12   RCW 36.70.982 and 2003 c 39 s 19 are each amended to read as follows:
     A county is not liable for adverse impacts resulting from a fish enhancement project that meets the criteria of RCW ((77.55.290)) 77.55.181 and has been permitted by the department of fish and wildlife.

Sec. 13   RCW 36.70.992 and 2003 c 39 s 20 are each amended to read as follows:
     (1) A permit required under this chapter for a watershed restoration project as defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450 through 89.08.510.
     (2) A fish habitat enhancement project meeting the criteria of RCW ((77.55.290(1))) 77.55.181 shall be reviewed and approved according to the provisions of RCW ((77.55.290)) 77.55.181.

Sec. 14   RCW 36.70A.460 and 2003 c 39 s 21 are each amended to read as follows:
     (1) A permit required under this chapter for a watershed restoration project as defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450 through 89.08.510.
     (2) A fish habitat enhancement project meeting the criteria of RCW ((77.55.290(1))) 77.55.181 shall be reviewed and approved according to the provisions of RCW ((77.55.290)) 77.55.181.

Sec. 15   RCW 43.21C.0382 and 2003 c 39 s 23 are each amended to read as follows:
     (1) Decisions pertaining to watershed restoration projects as defined in RCW 89.08.460 are not subject to the requirements of RCW 43.21C.030(2)(c).
     (2) Decisions pertaining to fish habitat enhancement projects meeting the criteria of RCW ((77.55.290(1))) 77.55.181 and being reviewed and approved according to the provisions of RCW ((77.55.290)) 77.55.181 are not subject to the requirements of RCW 43.21C.030(2)(c).