HOUSE BILL REPORT
HB 1392
BYRepresentatives 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 REPORTED BY COMMITTEE ON APPROPRIATIONS MARCH 4, 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:
SUBSTITUTE BILL: 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. Wetlands are defined by adoption of the definition of the U.S. Fish and Wildlife Service. To qualify as a wetland, land must meet one or more of three wetland attributes.
Ecology must prepare systems to classify and rate wetlands. 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 importance that they may not be deliberately adversely impacted. For other wetlands, any adverse impact requires mitigation as defined 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, enforcement as needed, an appeal process, and resolution of interjurisdictional disputes.
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. 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 approved by the department.
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.
SUBSTITUTE BILL COMPARED TO ORIGINAL: The no net loss goal is changed to a goal of preventing a further loss of wetlands as measured by significant decreases in either acreage or function.
Three changes are made in the definitions. First, the terms "regulated wetlands" and "regulated activities" are eliminated. A class of wetlands, termed "wetlands of statewide value" is added. These wetlands are those having characteristics of exceptional value which should never be intentionally adversely impacted and will be identified by Ecology with the concurrence of the local government. Third, wetlands will be identified according to data provided by the U.S. Fish and Wildlife Service. Once identified and initially classified by Ecology, the wetlands classification will be verified by the local government.
In lieu of defining regulated activities, local government regulations must regulate various, specified activities. Local wetland management plans are to be an element of county and other local government comprehensive planning ordinances. Shoreline master plans and other ordinances may be amended to include wetlands plans. Where the Shoreline Master Plan and the wetland plan overlap, the wetland plan shall prevail.
In the area of exemptions, farm activities remain excluded as long as the farm meets the criterion set in the open space tax law: earning certain minimum amounts per acre in the recent past. Exemptions will not apply to any land converted from an exempt activity to a non-exempt activity.
A mitigation section is added. It requires that mitigation follow the definition and priorities set out in the State Environmental Policy Act guidelines, i.e., avoiding adverse impacts first; modifying the project, second; mitigating the project, third; and last, compensating and monitoring the project. Some wetlands will be classified into categories within which mitigation is not permitted; others may be impacted and the impact mitigated.
If a person converts a wetland from an exempted activity to a non-exempted activity and sells the property, that person is liable for an additional real estate excise tax ten times that normally paid.
An appropriation of $1.9 million dollars is made; $1.5 million from the centennial clean water fund and $400,000 from the general fund. The Departments of Ecology, Natural Resources, and Wildlife shall work to find financial support for managing and acquiring wetlands.
The Department of Natural Resources will provide the inventory of wetlands to Ecology in a timely manner and in a form useful to Ecology.
CHANGES PROPOSED BY COMMITTEE ON APPROPRIATIONS: The general fund state appropriation of $400,000 is deleted. The name of the Centennial Clean Water Fund is corrected to read the Water Quality Account, and the amount appropriated from the account is reduced to $1,000,000.
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.