SENATE BILL REPORT

ESSB 6799

BYSenate Committee on Agriculture (originally sponsored by Senators Metcalf, Kreidler, Barr, Owen, Rinehart, Anderson, Lee, Patrick, Sutherland and Talmadge; by request of Governor)

Protecting wetlands.

Senate Committee on Agriculture

Senate Hearing Date(s):February 2, 1990

Majority Report:     That Substitute Senate Bill No. 6799 be substituted therefor, and the substitute bill do pass and be referred to Committee on Ways & Means.

     Signed by Senators Barr, Chairman; Anderson, Vice Chairman; Gaspard, Hansen, Newhouse.

Senate Staff:Bob Lee (786-7404)

                February 9, 1990

Senate Committee on Ways & Means

Senate Hearing Date(s):February 15, 1990

Majority Report:     That Substitute Senate Bill No. 6799 as recommended by Committee on Agriculture be substituted therefor, and the substitute do pass.

     Signed by Senators McDonald, Chairman; Cantu, Gaspard, Hayner, Johnson, Lee, Moore, Newhouse, Niemi, Owen, Talmadge, Wojahn.

Senate Staff:Michael Groesch (786-7715)

                March 6, 1990

AS OF SECOND READING, MARCH 5, 1990

BACKGROUND:

Some wetlands are covered by the Shoreline Management Act but isolated wetlands are not.  The Corps of Engineers administers a program that regulates the placement of dredge and fill materials on wetlands.  Some agricultural operations are subject to wetland protection provisions of the federal farm legislation.  Some local jurisdictions have or are in the process of adopting ordinances which include the protection of wetlands.

Local governments have been required to adopt shoreline master programs that meet state standards.  There are four categories of designation:  rural, urban, natural and conservancy.  The purpose of the act is to foster all reasonable and appropriate uses of shorelines.

A wetland management act is proposed to establish a statewide program to protect wetlands that are consistent between jurisdictions and to cover isolated wetlands that are not currently subject to regulation by the Shorelines Management Act.

SUMMARY:

The purpose of the legislation is to establish a statewide program to protect and regulate wetlands.  The goal of the program is to have no net loss in the wetlands remaining in the state.  Policies and standards are established which must be incorporated into local wetland programs to be administered at the local government level.

The general parameters and elements of a wetlands program are specified.  The Department of Ecology, with assistance of an advisory committee, is to establish by regulation what the local wetland programs are to contain.  These regulations are to be adopted by July 1, 1991.

This act will be administered through local permit programs.  The local government programs must be consistent with the provisions of the bill, rules adopted by Ecology, and be approved by Ecology.  All counties, cities and towns within counties bordering Puget Sound are required to develop and submit their programs to Ecology by July 1, 1992.  All other counties, cities and towns are to develop and submit their programs by July 1, 1993.  The Department of Ecology is to provide funds to local governments for program development.  Once developed, the cost of administering the programs will be borne at the local level.

Those local programs which are already in existence will be grandfathered if they are at least as stringent as specified.  Those local programs that are adopted after February 20, 1990, and before the Department of Ecology rules become final, are required to submit their programs to the Department of Ecology for certification that they substantially comply with the rating system, and buffers portions of the act; and fully comply with other essential provisions of the act including:  the definition of a wetland, activities requiring permits, activities not requiring permits, and mitigation requirements.

The definition of a wetland is provided along with a list of activities requiring permits, a list of activities not requiring permits, direction to establish a wetlands rating system, mitigation requirements, and when buffers are required.  The definition of a wetland for purposes of regulation includes ponds under 20 acres and the federal Clean Water Act definition which includes three parameters:  hydric soils, surface water or saturated soil, and under normal circumstances would contain wetland vegetation.  Areas meeting this definition include bogs, marshes and swamps, some saltwater areas, gentle sloping edges of lakes, ponds, perennial and intermittent streams.

Ecology is to establish a four-tiered rating system to classify wetlands according to value.  The highest category is to be classified as wetlands of statewide significance.  Permits for activities in wetlands of statewide significance require state approval.  Local government may combine two of the four tiers.  Local governments are to use this rating system to administer their local programs.

Activities on regulated wetlands or their buffers are regulated through a permit system unless otherwise provided.  Activities not required to obtain a permit include:  forest practices, maintenance and reconstruction of roads, utilities, and existing structures, emergency activities, previously existing storm water management facilities.  Activities on low value wetlands that are under one-third acre in size need not obtain a permit unless it is a residence being constructed for a person other than the one that will occupy it, or the construction of any commercial structure.  If houses are to be built for others, or for construction of any commercial structures on wetlands under one-third acre,  a contribution to a local wetland mitigation bank is required.  The Forest Practices Board is to adopt rules governing forest practices within 24 months that accomplish the purpose and intent of this act.

Several activities that are existing and ongoing are not required to obtain a permit.  Existing and ongoing agricultural activities may proceed without obtaining a permit but best management practices shall be encouraged.  Included in existing and ongoing agriculture is the operation and maintenance of irrigation systems and drains.  An agricultural activity ceases to be ongoing when it has not been used for a seven-year period unless enrolled in a state or federal soil conservation program.  Land that is presently farmed cannot be converted to a nonagricultural use without obtaining a permit and providing mitigation.  Wetlands and buffer areas that are not now farmed cannot be brought into an agricultural use without complying with the act.  Constructing farm buildings on farmlands that are on wetlands or their buffers requires obtaining a permit and complying with the act.

All adverse impacts to wetland values and functions are to be fully mitigated.  Mitigation, in a descending order of preference, includes:  (1) avoiding the impact by not taking action; (2) minimizing the impact; (3) rectifying the impact; (4) eliminating the impact over time; and (5) replacing impacted functions or values.  For class three and four wetlands, mitigation sequencing is to begin with (2) above.  For class one and two wetlands, mitigation sequencing is to begin with (1) above.  In both cases, the applicant must show that no net loss in wetland values or functions will occur.  Where feasible, the restored or created wetland shall be in a higher category than the altered wetland.  Ecology is to adopt acreage replacement ratios by wetland rating category. 

In order to provide additional protection for wetlands in areas of high growth, ranges of buffers are established by rule of the department.  The proposed rules pertaining to buffers are required to sit through a legislative session before they become effective.  High growth areas are those counties in which the population has increased by more than 10 percent over the last ten years and have a countywide population over 30,000.  Also, all counties consisting of islands are considered to be high growth areas.  Buffers are required in all high growth areas except that at local option, local governments can decide not to require buffers in sparsely populated regions within high growth areas.  Buffers are not to be required in low growth areas except buffers may be required at the local option for wetlands of statewide significance.

The committee will also examine nonregulatory methods of preserving wetlands and applying this chapter to wetlands regulated under the Shoreline Management Act.  The committee is composed of one representative from each of the following:  the Department of Ecology, the Department of Natural Resources, the tribes, the Washington Environmental Council, a city in a high growth area, a city in a low growth area, a high growth county, a low growth county, port districts, from business in a high growth area, from business in a low growth area, private property organization, and the agricultural community.  The chair is to be selected by committee members from nonstate agency representatives.

Local programs are required to use a checklist and guidelines prepared by the Attorney General to avoid any unanticipated takings as a result of their regulations.  The state is given some protection for takings which may result from the local programs.

The act is to be enforced by use of injunctions, civil penalties of up to $1,000 per day, and by establishing liability for all damages to public or private property.

Appropriation:  none

Revenue:   none

Fiscal Note:    available

Senate Committee - Testified:   AGRICULTURE:  Dwain Colby, Island County (pro); Steven Morrison, Thurston regional (pro); George Barner, Thurston County (pro); Randy Scott, WSAC (pro); Kathleen Collins, AWC (pro); Greg Fewins, City of Auburn (pro); Eric Johnson, Ports Association; Brian Johnson, NW Mining Assn. (con); Pam Barrett; David Roberts, Dept. of Ecology, Timber, Fish and Wildlife; Charles Chambers, Audubon Society; Mary Burke (con); Catherine Hovanic, Washington State Noxious Weed Board (pro); Arthur Solomon, INWC (pro); Ken Braget, Walter Braget Memorial Trust (con); John Wisch, WIDCO (con); Frank Lockard, Ducks Unlimited (pro); Harvey LaBorn (con); Marlyta Deck, Washington Cattlemen's Assn. (con); David Morris, Pacific Coast Coal Company (con); Jim Zimmerman, Travelodge, Washington Fish Growers Assn.; Maxime Keesling; Helen Hilton; Nick Adams, Washington Association of Realtors; Jeff Parsons, National Audubon Society (pro); Don Brunell, President, Association of Washington Business (pro)

Senate Committee - Testified:   WAYS & MEANS:  PRO:  Senator Barr, sponsor; Charles M. Chambers, Audubon Society; Ralph Mackey, Snohomish County; Pam Barrett, Hecla Mining & NW Mining; Kathleen Collins, Association of Washington Cities; George Barner, Jr., Thurston County; Steven Morrison, Thurston Regional Planning Council; Chuck Mize, City of Bellevue; Jim Zimmerman, Troutlodge Inc. & WA Fish Growers Association; Nick Adams, Washington Association of Realtors; AGAINST:  Joan Thomas, Wetlands Policy Forum; Jeff Parsons, National Audubon Society