HOUSE BILL REPORT

EHB 2729

BYRepresentatives Rust, Brough, Belcher, Brooks, Holland, R. King, O'Brien, Jacobsen, Dellwo, Phillips, Leonard, Pruitt, Rector, Nelson, Brekke, Day, Scott and Sprenkle; by request of Governor Gardner

Protecting wetlands.

House Committe on Natural Resources & Parks

House Staff:Bill Koss (786-7129)

AS PASSED HOUSE MARCH 28, 1990

BACKGROUND:

Though various federal, state and local programs provide a degree of protection for wetlands, no comprehensive statewide policy or program governs the use, development, or protection of wetlands, or provides a uniform definition of a wetlands.  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.

During recent years, individuals representing a variety of interests expressed concern over the variety of definitions used, and the varying standards used by different agencies and jurisdictions.  Individuals interested in minimizing the loss of wetlands additionally sought a statewide program to regulate uses affecting wetlands.  These individuals referenced a need for standards regarding mitigation, rating, regulating impacts on wetlands, and initiating a permit system for activities affecting wetlands.

In 1988, the governor signed an Executive Order directing the Department of 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.  Based on the 1988 report, the governor introduced wetlands legislation in 1989.  It passed the House and the Senate Agriculture Committee, but died in the Senate Rules Committee.

In September 1989, the governor appointed a Wetlands Forum, headed by the director of the Department of Ecology.  The governor charged the forum with the responsibility to prepare wetlands legislation for the 1990 session.  The forum included representatives from development, environmental, tribal, and agricultural interests, cities, counties and the Legislature.  In January, the Forum agreed upon a bill which they presented for legislative consideration.

SUMMARY:

 Purpose and Definitions

The state establishes a program of managing and protecting wetlands.  It identifies a short-term goal of no net wetlands loss and a long-term goal of increasing the quality and quantity of wetlands.

Wetlands are defined using the federal Clean Water Act definition and delineated using the federal methodology and rules.  By definition, "ongoing and existing agriculture" covers all facets of agriculture, including aquaculture.  It includes land currently in production or idle under a federal program.  Class four wetlands may be brought into production without mitigation or a permit.  If these wetlands are later converted to a non-agricultural use these wetlands must be restored or mitigation provided. Wetlands of state-wide significance are defined but not identified.

State and Local Government Roles

The responsibility for administering the wetlands program involves both the Department of Ecology and local governments.  For its part, Ecology will adopt rules by July 1, 1991, which delineate the wetland rating classifications, standards for buffers, mitigation, the program implementation and permit review process, criteria for identifying regulated wetlands and administrative procedures.  By July 1, 1992, all counties adjoining Puget Sound and cities within those counties must adopt wetland programs.  All other cities and counties must adopt programs by July 1, 1993.

Local governments carry out the program.  This includes adopting an ordinance, approving, conditioning or denying permits and, as funding allows, preparing an inventory of wetlands within their jurisdiction.  In conditioning permits the local government determines mitigation parameters, buffer size and the specific wetland rating.  Ecology will prepare standards to guide mitigation, buffers and rating decisions but the local government may vary from the standards.

Local programs adopted prior to the effective date of the act which substantially comply with the spirit and intent of the act and are at least as stringent are deemed in compliance.  Programs may qualify prior to the act's effective date only if adopted using standard procedures; not an expedited process by reason of an emergency.  Programs adopted after the act's effective date must use the Clean Water Act wetland definition and meet state specified mitigation wetland standards.  In other areas they must be consistent with the policies and provisions and the rules promulgated by Ecology.

Permits

A person must obtain a permit before conducting an activity which will affect a wetland or its buffer.  Activities requiring a permit include filling, draining, obstructing, or disturbing a wetland or altering the surrounding buffer in a way that impacts the wetland.

Certain activities are granted a general permit, meaning the person doing the activity need not obtain the permit usually required for activities affecting a wetland.  These activities must be performed taking prudent steps to avoid impact on the wetland.  Activities falling in this category include existing and ongoing agriculture; forest practices in compliance with the forest practices act and its regulations; water efficiency improvements; activities affecting wetlands one-third acre in size or less and in the lowest rating class; maintenance, operation and reconstruction of structures, roads and utilities; construction of normal and necessary accessory structures related to an existing and ongoing agriculture practice; emergency activities, and temporary activities with minimal potential for adverse impact.

There are two exceptions to the general permit for activities affecting class four wetlands of less than one-third acre.  First, mitigation must be provided for any activity other than construction or reconstruction of an owner-occupied single family residence.  Second, local governments may opt to require a permit for activities affecting some wetlands less than one- third of an acre by identifying specific wetlands in their local wetlands program where such a permit will be required.

Rating

Ecology will develop criteria to rate wetlands into four tiers or classes. The top class will be termed "wetlands of state-wide significance."  Local governments may establish a three tiered program by merging the top two classes.

Buffers

Unless the local government determines otherwise, every wetland shall have a buffer to protect its functions and values.  Local governments may vary from buffer size standards recommended by Ecology if the proposed buffer will still protect the wetland.  In some cases the local government may determine that no buffer is necessary to protect the wetland functions and values.  All determinations must be incorporated in the plan submitted to Ecology for approval.

Mitigation

Mitigation shall be required to offset all adverse impacts to regulated wetlands functions, values and acreage.  If a person applies for a permit to affect a regulated wetland, the applicant must mitigate the effect, using the following sequence:  total avoidance, minimization, including avoiding some impacts; rectification, reduction of the adverse impact over time, and last, compensation for any impact.  Local governments must consider options in addition to avoidance.  For proposed activities affecting the two lowest class wetlands, mitigation begins with minimizing the impact.  Permit applicants must demonstrate adequate financial resources and monitoring capability to assure the likelihood of the long-term success of the mitigation.  In general, mitigation and the permitted activity may proceed concurrently.

Mitigation banking is authorized, if the plan receives prior approval from the department and the local government.  Mitigation banking occurs when a person completes a mitigation project in advance of an application which will require mitigation.  At the local option, financial mitigation shall be permitted based on rules adopted by the department after completion of a study.

Enforcement and Appeals

Either the local government or the department may enforce the law or its rules.  Violators may be fined up to $1,000 per violation with each day a separate violation.  Violators are also liable for damages to public or private property arising from the violation.

Appeals of citations issued by Ecology are appealable to the Shorelines Hearings Board.  Locally issued citations are appealable via the local, administrative appeal process or to the local superior court.

Appeals of decisions regarding the issuance, denial or recision of a permit shall be governed by the process used to appeal local permits.  An exception is provided when the permit applies to a wetland of state-wide significance or the appellant believes the appeal addresses programmatic issues.  In this case the Shorelines Hearing Board hears the appeal.

A person may appeal an adverse decision or permit conditions to the local legislative body or superior court.  If either determines the original decision or conditions denied the landowner reasonable use of the property in violation of the constitution, the permit may be ordered to be issued or conditions removed or modified.

Other Elements

Ecology shall appoint an advisory committee.  The advisory committee shall examine the relation of the wetlands regulation to the Shorelines Management Act; nonregulatory mechanisms to share between the public and private sector the responsibility for supporting wetlands; consider means of incorporating the state's geographic diversity; recommend procedures for implementing mitigation banking; and evaluate if situations exist where mitigation might consist of only financial compensation.

The department is not required to seek the approval of the Ecological Commission when adopting local programs or amendments.

County assessors shall consider any restrictions imposed by the wetland regulations when assessing property.

The Forest Practices Board must adopt rules consistent with the policy and provisions of this act within 24 months.  In the interim, the Department of Natural Resources may regulate wetlands and wetland buffers to protect wetlands values and functions from any adverse impacts of forest practices. The Forest Practices Board must report every six months on its progress in preparing wetland regulations.

Fiscal Note:      Available.

House Committee ‑ Testified For:    The original wetlands bill received a public hearing in January. Another hearing took place in March on wetlands bills, not specifically any one bill.  The substitute bill received two public hearings, also in March. Staff can provide a list of individuals testifying at the public hearings.

House Committee - Testified Against:      The original wetlands bill received a public hearing in January. Another hearing took place in March on wetlands bills, not specifically any one bill.  The substitute bill received two public hearings, also in March. Staff can provide a list of individuals testifying at the public hearings.

House Committee - Testimony For:    Original Bill:  Though not a consensus bill, the bill prepared by the Governor's Wetland Forum represents a package bill which meets the needs of counties, cities, agriculture, and is supported by environmental groups.  Some issues required compromise and may require additional work prior to passage.

Local governments like the grandfathering provisions, and the process used to develop the bill.  The bill fills a regulatory gap that exists between the federal, state and local jurisdictions.  It sets a regulatory floor without a fixed ceiling.  It protects public and private resources without acting as a burden.

It facilitates the state as it works in national and international meetings.

Substitute:  The revisions made to the original bill take into consideration the comments received from the interest groups in the past two months. It clarifies the provisions affecting grandfathering, mitigation, appeals, the ability of local governments to set their own standards, and the relation to the Shoreline Management Act.  It also provides necessary local flexibility.

Even though the bill is good it needs to continue to contain the elements dealing with the short and long term goals, local ability to exceed state standards, no additional exemptions, and buffers.

Legislation to regulate and protect is less expensive than the cost of flood damage.

House Committee - Testimony Against:      Original:  Though widely accepted, the bill is not a consensus bill. Local governments will face difficulty with complying in the adoption schedule, especially if adequate funding is not provided.

Various groups would like additional language affecting ports and marine terminals, mining, noxious weeds, standardizing the approach local governments take in regulating wetlands, mitigation, non-regulatory options, public and private sharing the costs of regulations, the role of public acquisitions, and the status of existing plats.

Substitute:  Agriculture needs the ability to expand; this may mean bringing into production class three and four wetlands.  Regulating wetlands means imposing costs on individuals that should be costs for the public.  The public should acquire wetlands rather than regulating the land purchased by the individual for future income.

The bill needs to recognize that all the public should share the financial burden of regulation.  Agriculture needs to continue without the need to obtain a permit.  Buffers are unnecessary.  A checklist should be included to guide local government so they do not unintentionally adopt regulations constituting a taking.