HOUSE BILL REPORT

ESHB 1392

BYHouse Committee on Natural Resources & Parks (originally sponsored by Representatives Rust, Brough, Valle, Wang, Locke, O'Brien, Nelson, Jacobsen, May, Pruitt, Sprenkle, Patrick, Winsley, Scott, Sayan, R. King, Phillips and Cole; by request of Governor Gardner)

Enacting the wetland management act of 1989.

House Committe on Natural Resources & Parks

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (9)

      Signed by Representatives Belcher, Chair;K. Wilson, Vice Chair; Beck, Ranking Republican Member; Brumsickle, Dellwo, Ferguson,R. Fisher, Raiter and Sayan.

Minority Report:  Do not pass. (2)

      Signed by Representatives Fuhrman and Hargrove.

House Staff:Bill Koss (786-7129)

Rereferred House Committee on Appropriations

Majority Report:  The substitute bill by Committee on Natural Resources & Parks as amended by Committee on Appropriations be substituted therefor and the substitute bill as amended do pass. (19)

      Signed by Representatives Locke, Chair; H. Sommers, Vice Chair; Appelwick, Belcher, Braddock, Brekke, Bristow, Dorn, Ebersole, Hine, May, Peery, Rust, Sayan, Spanel, Sprenkle, Valle, Wang and Wineberry.

Minority Report:  Do not pass. (6)

      Signed by Representatives Grant, Vice Chair; Silver, Ranking Republican Member; Bowman, McLean, Nealey and Padden.

House Staff:      Nancy Stevenson (786-7136)

AS PASSED HOUSE MARCH 14, 1989

BACKGROUND:

The state has a large amount of natural wetlands due to its extensive coastline, large number and size of rivers and streams, and abundance of rainfall.  Other wetlands have been artificially created, largely through irrigation and agricultural practices.  Some estimate that half the state's wetlands have been directly or indirectly lost to various types of development since 1900.  Although there are various federal, state, or local programs that provide a degree of protection for wetlands, there is no comprehensive statewide policy or program governing the use, development, or protection of wetlands, or a clear definition of what a wetland is.  Concerns have been expressed over the continued loss of wetlands in the state through such practices as draining, filling, excavating, or otherwise damaging or destroying wetlands, and over the value such wetlands may have for such purposes as flood control, water quality, and fish and wildlife habitat.

The protections and management standards contained in the Shoreline Management Act (SMA) do not always apply to wetlands.  The SMA applies only to lakes at least 20 acres in size or streams flowing at least 20 cubic feet per second.  It defines wetlands in terms of property within 200 feet of the ordinary high water mark, not wetland plant communities, nor wetlands farther than 200 feet from the ordinary high water mark.

In 1988, the Governor signed an Executive Order directing Ecology to study the state's wetlands.  The Order contained three directives:  to prepare a final report by November 30, 1988; to evaluate the status and trends in wetlands and causes of alteration; and to make these determinations using an advisory body.

SUMMARY:

The Legislature finds that wetlands provide valuable functions; providing clean water, protection from floods, and habitat.  Wetlands are in jeopardy because of lack of protection from existing federal, state, and local laws.  It is the public policy of the state to preserve, protect, and manage wetlands with a goal of preventing further losses of the state's remaining wetlands base, as measured by either acreage or function.

A cooperative wetland management program between local governments and the state is created.  The Department of Natural Resources is to develop a statewide wetlands inventory using the definition prepared by the U.S. Fish and Wildlife Service.  Wetlands are to be regulated by the definition in the federal Clean Water Act. By September 15, 1991 Ecology must report to appropriate legislative committees whether wetland management plans should cover more than the wetlands regulated under this act.

Ecology must prepare systems to classify and rate wetlands.  Wetlands created through agricultural irrigation shall receive special consideration.  The classification and rating will permit local governments to determine the stringency with which a particular wetland shall be regulated.  Some wetlands will be of such a rating that they may not be deliberately adversely impacted.  For other wetlands, any adverse impact will require mitigation, as defined and prioritized by the State Environmental Policy Act:  avoidance of the impact; minimization of the impact; and, finally, compensation for the impact.

Ecology will assist local governments in several ways:  through financial support, technical support, preparation of model ordinances and mitigation plans, enforcement as needed, and development of an appeal process.

Local governments must regulate certain activities such as dredging, filling, draining, flooding, construction, or alteration of vegetation, consistent with the department's standards as of the date of adoption of those standards.  Until local governments adopt standards, those adopted by Ecology will prevail.

Certain other activities, such as ongoing and existing farming and ranching activities, maintenance of drainage ditches, harvesting of forest products, normal maintenance of buildings and roads, and maintenance of levees or dikes, are defined as "exempt activities" and as such are regulated by other laws or ordinances.

By August 1, 1990, the department must establish standards for the protection and management of wetlands and wetland buffer zones.  The governor shall appoint an advisory committee to assist in this process.  These standards will supersede Shoreline Master Plan standards affecting wetlands.  The department is to assist local governments in the development, implementation, and administration of their programs.  Within 18 months of the effective date of the department's standards, local governments must adopt local wetland management programs that meet the department's standards.  These local programs are to be reviewed and within 90 days, either approved by the department or returned to the local governments with specific modifications that must be made in order for the plan to be approved.

The Attorney General and the attorney for the local government are given the authority to bring actions for injunctive, declaratory, or other relief.  Persons failing to comply with the law are subject to civil penalties of up to $1,000 for each violation for each day of noncompliance. Penalties imposed by the department are subject to the review of the Shorelines Hearings Board, and those imposed by local government to review by the local legislative authority.

If a person converts land from an exempt activity to a non-exempt activity and then sells the land within three years, the sale is subject to an additional real estate excise tax.  The tax is 10.28 percent of the selling price.  Proceeds enter the wetland preservation and acquisition fund to purchase property rights to protect critical wetlands.

Additional authority is provided to the department and local governments to accept money, cooperate with other persons or organizations, appoint advisory committees, contract for professional services, and adopt rules.

Appropriation:    $1 million from the Water Quality Account.

Fiscal Note:      Available.

House Committee ‑ Testified For:    (Natural Resources & Parks) Fred Olsen, Joe LaTourrette, Department of Ecology; Dwain Colby, Island County commissioner; Bruce Wishart, Sierra Club; Elizabeth Tabbutt, Washington Environmental Council.  The following people supported the bill with amendments: Steven Morrison, City of Olympia; George Barner, Jr., Thurston County commissioner; Sharron Carrier, Thurston Regional Planning Council; Stan Biles, Department of Natural Resources; Marlyta Deck, Washington Cattlemen's Association; Chan Bailey, Washington State Water Resources Association.

(Appropriations) Joe LaTourette, Department of Ecology.

House Committee - Testified Against:      (Natural Resources & Parks) Ken Braget, citizen; Carol Osborne, City of Redmond; Walter Wojcik, Seattle Master Builder; Randy Ray, National Association of Office & Industrial Parks; Thomas J. Willett, National Association of Office & Industrial Parks.

(Appropriations) None Presented.

House Committee - Testimony For:    (Natural Resources & Parks) In spite of several laws affecting water and some wetland areas, major gaps in wetland protection still exist.  After the Governor's Executive Order appointing a wetland advisory group, the group prepared a report, and from the report, the Department of Ecology prepared House Bill 1392.  Much of the report was arrived at through consensus.

Local government needs a strong, clear direction from the state regarding wetland management.  This should come with adequate financial support to prepare wetland management plans, especially given the short time period the local governments have to prepare their wetland plans.

Certain terms and ideas, such as mitigation, and the appeal processes, require additional clarification.

Certain practices should not receive blanket exemptions, such as forest conversions, pipelines, marine wetland conversions, and all agriculture.

Farmers need to be exempted from regulation; they create wetlands through irrigation runoff.  Without an exemption, they will be hindered in obtaining bank loans.

The definition of wetlands should be the one used in the Clean Water Act, not the U.S. Fish and Wildlife Service definition.

(Appropriations) The Department of Ecology supports the bill.

House Committee - Testimony Against:      (Natural Resources & Parks) Additional exemptions are needed for private wildlife management areas.

The bill should clearly state that condemnation will never be used and that any acquisition will be from a willing seller.  In addition, lands should not lose value through a downzone by the local government.

In assessing the goal of no net loss of wetlands, the state should be flexible, looking at the functions and acreage lost and gained.  The bill needs to recognize the contribution that farmers make to creating and maintaining wetlands:  over 25,000 acres in the Columbia River Project area alone.

Using the Clean Water Act definition of wetlands is preferable to the U.S Fish and Wildlife Service definition.

Mitigation can be a viable method to rebuild wetlands and accommodate alteration of existing wetlands.  Mitigation, combined with an incentive system, will prompt the private sector to actively protect, enhance, and create wetlands.

(Appropriations) None Presented.