SENATE 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
Rereferred House Committee on Appropriations
Senate Committee on Agriculture
Senate Hearing Date(s):March 24, 1989; March 28, 1989; March 31, 1989
Majority Report: Do pass as amended.
Signed by Senators Barr, Chairman; Anderson, Vice Chairman; Bailey, Gaspard, Hansen, Madsen.
Senate Staff:Dave Monthie (786-7198)
April 3, 1989
AS REPORTED BY COMMITTEE ON AGRICULTURE, MARCH 31, 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 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.
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.
The Department of Ecology (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
Revenue: none
Fiscal Note: available
SUMMARY OF PROPOSED SENATE AMENDMENT:
The purpose and intent sections are expanded to recognize the unique characteristics of wetlands created by irrigated agriculture, and the intent to coordinate wetlands programs with other state policies and programs encouraging water use efficiency. The goal of the act is to achieve "no overall net loss" of wetlands on a statewide basis, and to increase the quantity and quality of the wetlands resource base.
The definitions of "wetland buffer zones" and "wetlands of statewide significance" are dropped, and these terms deleted from the act.
The requirement that the Department of Ecology report on regulated wetlands by September 15, 1991 is deleted, and a new provision added requiring an annual report to the Legislature on gains and losses of wetlands statewide.
In developing a classification and rating system, the department is required to consider additional criteria. It is required to give consideration to and make provision for wetlands created by irrigated agriculture.
In developing standards for wetland management plans, the department is required to consult with federal agencies. The standards do not apply to wetlands under the jurisdiction of the Shoreline Management Act, but this act does not affect the authority of local governments or the Department of Ecology under that act. The standards must provide for agricultural activities in wetlands created by irrigated agriculture that account for their unique characteristics. The standards must be adopted by the Department of Ecology as part of the rules required by October 1, 1990, which would not take effect until after the next legislative session.
Local wetland plans must include a management element. After the adoption of statewide standards, activities in regulated wetlands must comply with the standards only if required by existing local plans or by an interim permitting procedure adopted by the department by rule. Local governments must prepare a plan according to its applicable law. Management plans that have already been adopted by a local jurisdiction may be submitted to comply with this requirement. The department is required to approve the local plans unless the plans are not consistent with the purpose and intent of this act and the standards adopted by the department. After the department approves a proposed plan, it must be adopted by the local government within 90 days in accordance with applicable legislative procedures, including consideration for economic effects.
The exemption for agricultural and ranching activities is expanded to all normal and necessary activities on existing agricultural and farm land, including wetlands created by irrigated agriculture. The exemption for pipelines is limited to water-related facilities, including stormwater and wastewater facilities, irrigation ditches, and stock ponds. Construction of dikes and levees on agricultural land is exempt. Additional exemptions are made for emergency construction necessary for the public health and safety, minor activities as defined in state standards and local plans, and replacement of improvements damaged or destroyed by fire, flood, or other catastrophe or act of God.
The mitigation standards adopted by the department are to consider additional factors, consistent with basic mitigation priorities. Those factors include consistency with the long-term goal of increasing wetlands; requiring equivalent or higher value replacement lands, with the burden on the applicant to demonstrate lesser amounts of wetlands provide a higher value; permitting off-site mitigation only where on-site is not practicable, and only within the basin or jurisdiction; allowing joint mitigation of more than one applicant; and requiring mitigation prior to or concurrent with the development.
The Wetlands Advisory Committee composition is set out. The committee's existence is limited to three years. The committee is to advise the department as to development of guidelines and procedures for implementing the act. The department is to adopt rules on or before October 1, 1990, after considering the recommendations of the advisory committee. The rules are not to take effect until the end of the regular legislative session in the following year. All agencies of state and local government shall adopt rules or ordinances consistent with the act and rules adopted by the department.
A statewide wetlands trust fund is created. It is to be administered by the Department of Natural Resources. Money is to be placed in the fund from any lawful source. The fund is to be used to acquire priority wetlands and to provide low-interest loans to local governments to acquire interests in wetlands. The Department of Natural Resources is to develop conditions and criteria for loans. It is to develop priorities for acquisition in cooperation with the Department of Ecology. A priority is to be given to funding projects in jurisdictions where contributions to the fund have been required as a form of mitigation.
The provision authorizing a tax on conversions of wetlands is deleted.
The Department of Natural Resources is required to expend up to $400,000 to develop the wetlands inventory and maps.
The authority of federal, state, tribal, or local government to regulate activities in wetlands is not affected, except to the extent provided in the act.
The provision requiring liberal construction of the act is deleted.
Cities are precluded from annexing any farm or agricultural land in unincorporated areas of counties that have agricultural preservation programs adopted by the county council or board of commissioners, identifying the lands to be preserved, if such lands contain or are contiguous to wetlands.
Senate Committee - Testified: Representative Nancy Rust, original sponsor (pro); Representative Jennifer Belcher (pro); Carol Jolly, Department of Ecology (pro); Dwain Colby, Island County (pro); Kimberly Ordon, Tulalip Tribe; Chris Stanley, Northwest Indian Fisheries Commission; Sharron Carrier, Thurston Regional Planning Council; George Barner, Thurston County Board of Commissioners; Ray Nelson, property owner (con); Ken Braget, property owner (con); John Robinett, Washington Association of Realtors (con); Betty Tabbutt, Washington Environmental Council (pro); Randy Ray, National Association of Industrial and Office Parks and Washington Association of Wheat Growers; Mark Triplett, Seattle Master Builders; Lorna Campion, Snohomish County Planning Department (pro); Riley Atkins, King County Planning Department (pro); Randy Scott, Washington Association of Counties; Maxine Keesling, realtor (con); Kathleen Collins, Association of Washington Cities; Steve Morrison, City of Olympia Planning Department (pro); Chuck Mize, City of Bellevue; Marlyta Deck, Washington Cattlemen's Association; Eric Johnson, Washington Public Ports Association (pro); Jeff Parsons, National Audubon Society; John Wisch, WIDCO