SENATE BILL REPORT
SB 6799
BYSenators 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)
February 16, 1990
AS REPORTED BY COMMITTEE ON WAYS & MEANS, FEBRUARY 15, 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 the fill of wetlands. 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, to cover isolated wetlands that are not currently subject to regulation, and to increase the level of protection to wetlands that are presently covered by the Shoreline Management Act.
SUMMARY:
The purpose of the bill is to preserve and regulate wetlands with a short term goal of no net loss and a long term goal of restoring and increasing the quality and quantity of wetlands.
The standards of this act and its rules shall apply to wetlands that are subject to the Shoreline Management Act.
The Department of Ecology is to adopt rules establishing what local plans are to include. Cities, towns and counties are to develop local wetland programs that meet Ecology's standards. Local governments will administer the wetland protection program through a local permit process.
Ecology is to adopt regulations by July 1, 1991. Local jurisdictions within the Puget Sound basin are to adopt programs by July 1, 1992 and all other jurisdictions by July 1, 1993. Each program must be submitted to and approved by the Department of Ecology.
Activities undertaken after the effective date and before local ordinances are adopted are required to comply with the spirit and intent of the act.
There are two different definitions of wetlands. The definition established by the U.S. Fish and Wildlife Service is a broader one and is established for the purposes of inventory and nonregulatory programs. The definition of wetlands 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 and perennial and intermittent streams. Areas that contain hydric soils but no longer contain wetland vegetation are normally included under this definition.
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 governments may combine two of the four tiers. Local governments are to use this rating system to administer their local programs.
Ecology is to establish ranges for buffer areas for each of the four rating categories. The width of the buffer areas and what activities can be conducted in buffer areas are to be determined by Ecology by rule. Local governments are to choose buffer widths from within this range. Local governments can choose to adopt larger or smaller buffers than the range set by Ecology if local governments determine they are needed to protect wetland values and functions. Beds of streams one half of a mile upstream from a regulated buffer are to be considered buffers.
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. Local governments may provide an exemption for wetlands less than one half acre that are in the lowest rating system category. All other wetlands, including their buffers are to be included regardless of size.
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 five-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 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.
The applicant must show that no net loss in wetland values and 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.
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.
The act is exempt from the rule of strict construction.
EFFECT OF PROPOSED SUBSTITUTE:
The no-net-loss policy is retained. Recognition that the continuation of existing and ongoing activities does not create a gain or loss in wetlands is maintained. The long term goal of enhancing quantity and quality of wetlands is deleted but the study to examine nonregulatory methods to restore and create additional wetlands is maintained.
Wetlands that are currently regulated under the Shoreline Management Act are not subject to regulation under this act. The Department of Ecology is directed to conduct a study on the effects, desirability and compatibility of applying this act to wetlands currently regulated under the Shoreline Management Act.
Wetlands that are to be regulated are required to have three parameters: hydric soil, water, and vegetation. Language is changed to clarify that all three must be present. Ponds under 20 acres continue to be included as wetlands.
The wetlands that are to be inventoried, as funding becomes available, are the same wetlands that will be regulated.
Written assurances are provided that the Department of Ecology will allocate funds to local governments for program development and for conducting inventories. Authority is provided to extend statutory deadlines if local governments fail to obtain funds.
Agreements are required between cities and counties prior to the use of revenues from counties' existing authority to use conservation futures tax for wetland acquisition.
The reference that the act is exempt from normal rules of statutory construction is deleted.
A complex wetland rating system is simplified. Authority is retained for the Department of Ecology to establish by rule wetlands of statewide significance. All wetlands meeting the "regulated wetland" definition will be subject to the same mitigation requirements, except that authority to provide for more stringent mitigation for wetlands of statewide significant is maintained. Otherwise, the mitigation provisions of the bill are essentially unchanged.
The following activities which were not in the original bill may be conducted without obtaining permits: (1) existing and ongoing upland fin fish rearing; (2) ongoing surface coal mining operations which are licensed under the federal surface mine reclamation law; (3) existing and future mining operations, which must comply with best management practices and nonpoint source water quality regulations; (4) control of noxious weeds identified by the state Noxious Weed Control Board; (5) activities to control mosquitoes conducted by public agencies; (6) existing and ongoing public port operations; (7) maintenance of existing railroads.
The requirement that the Department of Ecology establish buffers which local governments must adopt is deleted, leaving discretionary authority for local governments to establish buffers.
The time period for agricultural land to cease being considered ongoing is increased from five years to seven years. All other provisions relating to agriculture are maintained.
The exemption for construction of single family residences on wetlands of one-half acre or less is expanded to all activities.
Agricultural lands in counties with an adopted agricultural land preservation plan shall not be subject to annexation by a city if they contain wetlands or are contiguous to wetlands.
Included in the mitigation plan is a requirement that persons undertaking development of upland areas are to pay the increased costs of cleaning ditches and canals, draining wetlands created by future increased runoff, and pumping additional water from adjacent farmlands that are in an agricultural preservation area designated by the county.
Activities subject to requirements of obtaining permits from local governments are to commence upon adoption of rules by the Department of Ecology, and prior to the adoption of local ordinances.
Appropriation: none
Revenue: none
Fiscal Note: requested January 23, 1990
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