BILL REQ. #: H-3508.1
| State of Washington | 63rd Legislature | 2014 Regular Session |
Read first time 01/21/14. Referred to Committee on Agriculture & Natural Resources.
AN ACT Relating to small scale prospecting and mining hydraulic projects in state waters; amending RCW 77.55.021, 77.55.091, and 77.55.321; reenacting and amending RCW 77.55.011; adding a new section to chapter 77.55 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 77.55.011 and 2012 1st sp.s. c 1 s 101 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) "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).
(9) "Expedited permit" means a hydraulic project approval issued to
a person under RCW 77.55.021 (14) and (16).
(10) "Forest practices hydraulic project" means a hydraulic project
that requires a forest practices application or notification under
chapter 76.09 RCW.
(11) "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.
(12) "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.
(13) "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.
(14) "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.
(15) "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.
(16) "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.
(17) "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.
(18) "Permit" means a hydraulic project approval permit issued
under this chapter.
(19) "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.
(20) "Sandbars" includes, but is not limited to, sand, gravel,
rock, silt, and sediments.
(21) "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.
(22) "Spartina," "purple loosestrife," and "aquatic noxious weeds"
have the same meanings as defined in RCW 17.26.020.
(23) "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.
(24) "Tide gate" means a one-way check valve that prevents the
backflow of tidal water.
(25) "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.
(26) "Suction dredge" means a machine used to move submerged
aggregate via hydraulic suction and that processes the aggregate
through an attached sluice box for the recovery of gold and other
minerals.
Sec. 2 RCW 77.55.021 and 2012 1st sp.s. c 1 s 102 are each
amended to read as follows:
(1) Except as provided in RCW 77.55.031, 77.55.051, 77.55.041, and
77.55.361, in the event that any person or government agency desires to
undertake a hydraulic project, the person or government agency shall,
before commencing work thereon, secure the approval of the department
in the form of a permit as to the adequacy of the means proposed for
the protection of fish life.
(2) A complete written application for a permit may be submitted in
person or by registered mail and must contain the following:
(a) General plans for the overall project;
(b) Complete plans and specifications of the proposed construction
or work within the mean higher high water line in saltwater or within
the ordinary high water line in freshwater;
(c) Complete plans and specifications for the proper protection of
fish life;
(d) Notice of compliance with any applicable requirements of the
state environmental policy act, unless otherwise provided for in this
chapter; and
(e) Payment of all applicable application fees charged by the
department under RCW 77.55.321.
(3) The department may establish direct billing accounts or other
funds transfer methods with permit applicants to satisfy the fee
payment requirements of RCW 77.55.321.
(4) The department may accept complete, written applications as
provided in this section for multiple site permits and may issue these
permits. For multiple site permits, each specific location must be
identified.
(5) With the exception of emergency permits as provided in
subsection (12) of this section, applications for permits must be
submitted to the department's headquarters office in Olympia. Requests
for emergency permits as provided in subsection (12) of this section
may be made to the permitting biologist assigned to the location in
which the emergency occurs, to the department's regional office in
which the emergency occurs, or to the department's headquarters office.
(6) Except as provided for emergency permits in subsection (12) of
this section, the department may not proceed with permit review until
all fees are paid in full as required in RCW 77.55.321.
(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.
The department may not issue a permit under this chapter for the use of
a suction dredge in any state waters that have been designated as
critical habitat for threatened or endangered species by the United
States fish and wildlife service or the United States national oceanic
and atmospheric administration or in the tributaries of any freshwater
state waters that have received critical habitat designation.
(b) Except as provided in this subsection and subsections (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).
(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.
(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.
(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.
(9)(a) The permittee must demonstrate substantial progress on
construction of that portion of the project relating to the permit
within two years of the date of issuance.
(b) Approval of a permit is valid for up to five years from the
date of issuance, except as provided in (c) of this subsection and in
RCW 77.55.151.
(c) A permit remains in effect without need for periodic renewal
for hydraulic projects that divert water for agricultural irrigation or
stock watering purposes and that involve seasonal construction or other
work. A permit for streambank stabilization projects to protect farm
and agricultural land as defined in RCW 84.34.020 remains in effect
without need for periodic renewal if the problem causing the need for
the streambank stabilization occurs on an annual or more frequent
basis. The permittee must notify the appropriate agency before
commencing the construction or other work within the area covered by
the permit.
(10) The department may, after consultation with the permittee,
modify a permit due to changed conditions. A modification under this
subsection is not subject to the fees provided under RCW 77.55.321.
The modification is appealable as provided in subsection (8) of this
section. For a hydraulic project that diverts water for agricultural
irrigation or stock watering purposes, 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.
(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 RCW 77.55.321. A decision by the department is
appealable as provided in subsection (8) of this section. For a
hydraulic project that diverts water for agricultural irrigation or
stock watering purposes, 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.
(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, 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 verbal permit must be 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 RCW 77.55.321 until after the
emergency permit is issued and reduced to writing.
(13) All state and local agencies with authority under this chapter
to issue permits or other authorizations in connection with emergency
water withdrawals and facilities authorized under RCW 43.83B.410 shall
expedite the processing of such permits or authorizations in keeping
with the emergency nature of such requests and shall provide a decision
to the applicant within fifteen calendar days of the date of
application.
(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.
(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 (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.
(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.
Sec. 3 RCW 77.55.091 and 2005 c 146 s 402 are each amended to
read as follows:
(1) ((Small scale prospecting and mining shall not require a permit
under this chapter if the prospecting is conducted in accordance with
rules established by the department.)) The department shall require the
permit for mineral prospecting and mining described in section 4 of
this act for activities conducted in accordance with the gold and fish
pamphlet.
(2) ((By December 31, 1998, the department shall adopt rules
applicable to small scale prospecting and mining activities subject to
this section. The department shall develop the rules in cooperation
with the recreational mining community and other interested parties.)) The department
shall distribute ((
(3) Within two months of adoption of the rules,an updated)) a gold and fish pamphlet that describes
methods of mineral prospecting that are consistent with the
department's rule. The pamphlet shall be written to clearly indicate
the mineral prospecting and mining methods that require a permit under
this chapter or section 4 of this act and the mineral prospecting and
mining methods that require compliance with the pamphlet. To the
extent possible, the department shall use the provisions of the gold
and fish pamphlet to minimize the number of specific provisions of a
written permit issued under this chapter.
NEW SECTION. Sec. 4 A new section is added to chapter 77.55 RCW
to read as follows:
A mineral prospecting and mining permit is required to conduct
small scale prospecting and mining and any mineral prospecting and
mining not prohibited under RCW 77.55.021(7)(a). The fee for the
permit is one hundred fifty dollars. In addition to the permit,
compliance with the pamphlet referenced in RCW 77.55.091(2) is required
in order to conduct mineral prospecting and mining. Permit applicants
must submit a permit application and payment in a manner and form
required by the department. Prior to prospecting and mining
activities, the permit holder shall notify the department of the month
and location that the prospecting and mining will be performed.
Sec. 5 RCW 77.55.321 and 2012 1st sp.s. c 1 s 103 are each
amended to read as follows:
(1) The department shall charge an application fee of one hundred
fifty dollars for a hydraulic project permit or permit modification
issued under RCW 77.55.021 where the project is located at or below the
ordinary high water line. The application fee established under this
subsection may not be charged after June 30, 2017.
(2) The following hydraulic projects are exempt from all fees
listed under this section:
(a) Hydraulic projects approved under applicant-funded contracts
with the department that pay for the costs of processing those
projects;
(b) If RCW 77.55.361, 76.09.490, and 76.09.040 are enacted into law
by June 30, 2012, forest practices hydraulic projects;
(c) Pamphlet hydraulic projects other than those authorized by the
gold and fish pamphlet; and
(d) ((Mineral prospecting and mining activities; and)) Hydraulic projects occurring on farm and agricultural land,
as that term is defined in RCW 84.34.020.
(e)
(3) All fees collected under this section must be deposited in the
hydraulic project approval account created in RCW 77.55.331.
(4) The fee provisions contained in this section are prospective
only. The department of fish and wildlife may not charge fees for
hydraulic project permits issued under this title prior to July 10,
2012.
(5) This section expires June 30, 2017.
NEW SECTION. Sec. 6 The department of fish and wildlife shall
adopt rules necessary to implement this act.
NEW SECTION. Sec. 7 This act may be known and cited as the give
fish a chance act.