AN ACT Relating to hydraulic projects; amending RCW 75.20.100, 43.83B.320, 75.20.300, 76.09.050, 76.09.910, 79.90.150, 90.03.247, and 90.62.020; recodifying RCW 75.20.100; and creating a new section.

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

NEW SECTION. Sec. 1. The legislature finds that the proper exercise of rights to water by the people of this state is essential to the well-being of the state and its citizenry and that exercising surface water rights has historically required and continues to require the maintenance and repair of diversion works. The purpose of this act is to transfer the administration of the statute governing hydraulic project approvals to the department that administers the state's water rights codes both to reduce the number of agencies from which water related permits must be secured for new projects and to assure that the statute will be administered in a manner consistent with the purposes of the water codes. Providing additional guidance for protecting the use of water rights is also an objective of this act.

Sec. 2. Section 75.20.100, chapter 12, Laws of 1955 as last amended by section 75, chapter 46, Laws of 1983 1st ex. sess. and RCW 75.20.100 are each amended to read as follows:

(1) In the event that any person or government agency desires to construct any form of hydraulic project or other work that will use, divert, obstruct, or change the natural flow or bed of any river or stream or that will utilize any of the salt or fresh waters of the state or materials from the stream beds, such person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure the written approval of the department ((~~having jurisdiction of the site~~)) of ecology as to the adequacy of the means proposed for the protection of fish life. This approval shall not be unreasonably withheld. The ((~~appropriate~~)) department shall grant or deny approval within forty-five calendar days of the receipt of a complete application and notice of compliance with any applicable requirements of the state environmental policy act, made in the manner prescribed in this section. The applicant may document receipt of application by filing in person or by registered mail. A complete application for approval shall contain general plans for the overall project, complete plans and specifications of the proposed construction or work within the mean higher high water line in salt water or within the ordinary high water line in fresh water, and complete plans and specifications for the proper protection of fish life. The forty-five day requirement shall be suspended if (1) 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; (2) the site is physically inaccessible for inspection; or (3) the applicant requests delay. Immediately upon determination that the forty-five day period is suspended, the ((~~appropriate~~)) department shall notify the applicant in writing of the reasons for the delay. Approval is valid for a period of up to five years from date of issuance. The permittee must demonstrate substantial progress on construction of that portion of the project relating to the hydraulic permit within two years of the date of issuance. If approval is denied, the ((~~appropriate~~)) department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life. Protection of fish life shall be the only ground upon which approval may be denied or conditioned. Chapter 34.04 RCW applies to any denial of project approval, conditional approval, or requirements for project modification upon which approval may be contingent. If any person or government agency commences construction on any hydraulic works or projects subject to this section without first having obtained written approval of the ((~~appropriate~~)) department as to the adequacy of the means proposed for the protection of fish life, or if any person or government agency fails to follow or carry out any of the requirements or conditions as are made a part of such approval, the person or director of the agency is guilty of a gross misdemeanor. If any such person or government agency is convicted of violating any of the provisions of this section and continues construction on any such works or projects without fully complying with the provisions hereof, such works or projects are hereby declared a public nuisance and shall be subject to abatement as such. For the purposes of this section, "bed" shall mean that portion of a river or stream and the shorelands within ordinary high water lines.

((For each application, the departments shall mutually agree on which one department shall administer the provisions of this section, in order to avoid duplication of effort. The department designated to act shall cooperate with the other department in order to protect all species of fish life found at the project site. If a department receives an application concerning a site not in its jurisdiction, it shall transmit the application to the appropriate department within three days and notify the applicant.))

In case of an emergency arising from weather or stream flow conditions or other natural conditions, ((~~the department of fisheries or department of game, through their authorized representatives, shall issue immediately upon request oral permits to a riparian owner or lessee for~~)) removing any obstructions, repairing existing structures, restoring stream banks, or ((~~to protect~~)) protecting property and crops threatened by the stream ((without the necessity of obtaining a written permit prior to commencing work. Conditions of an oral permit shall be reduced to writing within thirty days and complied with as provided for in this section)) does not require a permit.

(2) (a) This section does not apply to the use, operation, maintenance, restoration, or protection of diversion works associated with a perfected water right secured under, or recognized as being valid by, the state's water codes unless the method or point of diversion is changed.

(b) This section does not impair or diminish a water right secured under, or recognized as being valid by, the state's water codes.

NEW SECTION. Sec. 3. RCW 75.20.100 , as amended by section 2 of this 1985 act, is recodified as a new section in chapter 90.03 RCW.

Sec. 4. Section 5, chapter 1, Laws of 1977 ex. sess. and RCW 43.83B.320 are each amended to read as follows:

(1) As to projects and water withdrawal permits issued or authorized or both under RCW 43.83B.310 and 43.83B.315, the requirements of chapter 43.21C RCW and all local zoning ordinances, plans, and local building and construction permit ordinances are waived and inapplicable. Notwithstanding any other provisions of law, water projects and related withdrawal permits, authorized or issued pursuant to RCW 43.83B.310 or 43.83B.315 shall not be subject to any public notice requirements. Permits issued under RCW 43.83B.310 and 43.83B.315 shall be in lieu of all environmental protection and natural resource regulation permits, certificates, and other approvals and authorization documents required under state statutes including, but not limited to, RCW 90.58.140, 75.20.100 as recodified by section 3 of this 1985 act, and 86.16.080, as well as all other similar permits required under local ordinances. All state departments or other agencies having jurisdiction over state or other public lands which are required to be used in carrying out projects related to water withdrawal permits, issued pursuant to RCW 43.83B.310 and 43.83B.315, shall provide short term easements or other appropriate property interests upon the payment of the fair market value: PROVIDED, That this mandate shall not apply to any lands of the state which are reserved for a special purpose or use which cannot properly be carried out if such a property interest were to be conveyed.

(2) Upon request of the department of ecology or the department of social and health services, the department of general administration may waive any public bidding requirements otherwise provided by law, for any project authorized by RCW 43.83B.310 or 43.83B.315 and financed with funds appropriated in RCW 43.83B.300 through 43.83B.385, 43.83B.901, and 43.83B.210 if the department of general administration determines that (a) an emergency condition exists, and (b) if the request for a waiver is not approved the public interest will be significantly affected in a detrimental manner. The department of general administration shall rule upon requests for waiver submitted to it within five working days. If the department fails to rule within said five-day period the request shall be deemed approved and a waiver deemed to be granted. The department of general administration, after obtaining the views of the department of ecology and the department of social and health services, shall adopt rules to implement this section. Notwithstanding any other provision of RCW 43.83B.300 through 43.83B.385, 43.83B.901, and 43.83B.210, this subsection shall terminate on September 30, 1977.

Sec. 5. Section 8, chapter 7, Laws of 1982 as last amended by section 3, chapter 80, Laws of 1984 and RCW 75.20.300 are each amended to read as follows:

(1) The legislature intends to expedite flood-control and dredging operations in those rivers affected by the May 1980 eruption of Mt. St. Helens, while continuing to protect the fish resources of these rivers.

(2) The director of ((~~fisheries and director of game~~)) ecology shall process hydraulic project applications submitted under RCW 75.20.100 as recodified by section 3 of this 1985 act within fifteen working days of receipt of the application. This requirement is only applicable to flood control and dredging projects located in the Toutle river, in the Cowlitz river from River Mile 22 to the confluence with the Columbia, and the volcano-affected tributaries of the Cowlitz and Toutle river and volcano-affected areas of the Columbia river.

(3) For the purposes of this section, the emergency provisions of RCW 75.20.100 as recodified by section 3 of this 1985 act may be initiated by the county legislative authority if the project is necessary to protect human life or property from flood hazards, including:

(a) Flood fight measures necessary to provide protection during a flood event; or

(b) Measures necessary to reduce or eliminate a potential flood threat when other alternative measures are not available or cannot be completed prior to the expected flood threat season; or

(c) Measures which must be initiated and completed within an immediate period of time and for which processing of the request through normal methods would cause a delay to the project and such delay would significantly increase the potential for damages from a flood event.

This section expires on June 30, 1988.

Sec. 6. Section 5, chapter 137, Laws of 1974 ex. sess. as amended by section 2, chapter 200, Laws of 1975 1st ex. sess. and RCW 76.09.050 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 that may be conducted without submitting an application or a notification;

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. Class II shall not include forest practices:

(a) On lands platted after January 1, 1960, or being converted to another use;

(b) Which require approvals under the provisions of the hydraulics act, RCW 75.20.100 as recodified by section 3 of this 1985 act;

(d) Excluded from Class II by the board;

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 fourteen calendar days from the date the department receives the application;

Class IV: Forest practices other than those contained in Class I or II: (a) On lands platted after January 1, 1960, (b) on lands being converted to another use, (c) 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, 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.

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) 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: PROVIDED, That any person commencing a forest practice during 1974 may continue such forest practice until April 1, 1975, if such person has submitted an application to the department prior to January 1, 1975: PROVIDED, FURTHER, That 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) If a notification or application is delivered in person to the department by the operator or his 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) 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) 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, game, and fisheries, and to the county in which the forest practice is to be commenced. Any comments by such agencies shall be directed to the department of natural resources.

(6) If the county 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) The department shall not approve portions of applications to which a county objects if:

(a) The department receives written notice from the county of such objections within fourteen business days from the time of transmittal of the application to the county, or one day before the department acts on the application, whichever is later; and

(b) The objections relate to lands either:

(i) Platted after January 1, 1960; or

(ii) Being converted to another use.

The department shall either disapprove those portions of such application or appeal the county objections to the appeals board. If the objections related to subparagraphs (b) (i) and (ii) 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 consents to its approval or such disapproval is reversed on appeal. The applicant shall be a party to all department appeals of county objections. Unless the county 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 objections has expired.

(8) In addition to any rights under the above paragraph, the county 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) Appeals under this section shall be made to the appeals board in the manner and time provided in RCW 76.09.220(9). In such appeals there shall be no presumption of correctness of either the county or the department position.

(10) The department shall, within four business days notify the county of all notifications, approvals, and disapprovals of an application affecting lands within the county, except to the extent the county has waived its right to such notice.

(11) A county 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.

Sec. 7. Section 32, chapter 137, Laws of 1974 ex. sess. as amended by section 12, chapter 200, Laws of 1975 1st ex. sess. and RCW 76.09.910 are each amended to read as follows:

Nothing in RCW 76.09.010 through 76.09.280 as now or hereafter amended shall modify any requirements to comply with the Shoreline Management Act of 1971 except as limited by RCW 76.09.240 as now or hereafter amended, or the hydraulics act (RCW 75.20.100 as recodified by section 3 of this 1985 act), other state statutes in effect on January 1, 1975, and any local ordinances not inconsistent with RCW 76.09.240 as now or hereafter amended.

Sec. 8. Section 21, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.90.150 are each amended to read as follows:

When gravel, rock, sand, silt or other material from any aquatic lands is removed by any public agency or under public contract for channel or harbor improvement, or flood control, use of such material may be authorized by the department of natural resources for a public purpose on land owned or leased by the state or any municipality, county, or public corporation: PROVIDED, That when no public land site is available for deposit of such material, its deposit on private land with the landowner's permission is authorized and may be designated by the department of natural resources to be for a public purpose. Prior to removal and use, the state agency, municipality, county, or public corporation contemplating or arranging such use shall first obtain written permission from the department of natural resources. No payment of royalty shall be required for such gravel, rock, sand, silt, or other material used for such public purpose, but a charge will be made if such material is subsequently sold or used for some other purpose: PROVIDED, That the department may authorize such public agency or private landowner to dispose of such material without charge when necessary to implement disposal of material. No charge shall be required for any use of the material obtained under the provisions of this chapter when used solely on an authorized site. Nothing in this section shall repeal or modify the provisions of RCW 75.20.100 as recodified by section 3 of this 1985 act or eliminate the necessity of obtaining a permit for such removal from other state or federal agencies as otherwise required by law.

Sec. 9. Section 1, chapter 166, Laws of 1979 ex. sess. as amended by section 46, chapter 87, Laws of 1980 and RCW 90.03.247 are each amended to read as follows:

Whenever an application for a permit to make beneficial use of public waters is approved relating to a stream or other water body for which minimum flows or levels have been adopted and are in effect at the time of approval, the permit shall be conditioned to protect the levels or flows. No agency may establish minimum flows and levels or similar water flow or level restrictions for any stream or lake of the state other than the department of ecology whose authority to establish is exclusive, as provided in chapter 90.03 RCW and RCW 90.22.010 and 90.54.040. The provisions of other statutes, including but not limited to ((~~RCW 75.20.100 and~~)) chapter 43.21C RCW, may not be interpreted in a manner that is inconsistent with this section. In establishing such minimum flows, levels, or similar restrictions, the department shall, during all stages of development by the department of ecology of minimum flow proposals, consult with, and carefully consider the recommendations of, the department of fisheries, the state game commission, the state energy office, the department of agriculture, and representatives of the affected Indian tribes. Nothing herein shall preclude the department of fisheries, the game commission, the energy office, or the department of agriculture from presenting its views on minimum flow needs at any public hearing or to any person or agency, and the department of fisheries, the game commission, the energy office, and the department of agriculture are each empowered to participate in proceedings of the federal energy regulatory commission and other agencies to present its views on minimum flow needs. The department of ecology shall file with the speaker of the house of representatives and the president of the senate on the first day of each regular session of the legislature during an odd-numbered year a report as to the implementation of its minimum flow setting program.

Sec. 10. Section 2, chapter 185, Laws of 1973 1st ex. sess. as amended by section 2, chapter 54, Laws of 1977 and RCW 90.62.020 are each amended to read as follows:

For purposes of this chapter the following words mean, unless the context clearly dictates otherwise:

(1) "Board" means the pollution control hearings board.

(2) "Department" means the department of ecology.

(3) "Local government" means a county, city or town.

(4) "Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document pertaining to any regulatory or management program related to the protection, conservation, or use of, or interference with, the natural resources of land, air or water in the state, which is required to be obtained from a state agency prior to constructing or operating a project in the state of Washington. Permit shall also mean a substantial development permit under RCW 90.58.140 and any permit, required by a local government for a project, that the local government has chosen to process pursuant to RCW 90.62.100(2) as now or hereafter amended. Nothing in this chapter shall relate to a permit issued by the department of labor and industries or by the utilities and transportation commission; nor to the granting of proprietary interests in publicly owned property such as sales, leases, easements, use permits and licenses.

(5) "Person" means any individual, municipal, public, or private corporation, or other entity however denominated, including a state agency and county.

(6) "Processing" and "processing of applications" mean the entire process to be followed in relation to the making of decisions on an application for a permit and review thereof as provided in RCW 90.62.040 through 90.62.080.

(7) "Project" means any new activity or any expansion of or addition to an existing activity, fixed in location, for which permits are required prior to construction or operation from (a) two or more state agencies as defined in subsection (8) of this section, or (b) one or more state agencies and a local government, if the local government is processing permits or requests for variances or rezones pursuant to the procedure established by the provisions of this chapter, as provided by RCW 90.62.100(2) as now or hereafter amended. Such construction or operation may include, but need not be limited to, industrial and commercial operations and developments. ((For the purpose of part (a) of this subsection, the submission of plans and specifications for a hydraulic project or other work to the departments of fisheries and game pursuant to RCW 75.20.100 shall be considered to be an application for a permit required by one state agency.))

(8) "State agency" means any state department, commission, board or other agency of the state however titled. For the limited purposes of this chapter only "state agency" shall also mean (a) any local or regional air pollution control authority established under chapter 70.94 RCW and (b) any local government when said government is acting in its capacity as a decision maker on an application for a permit pursuant to RCW 90.58.140.