AN ACT Relating to wetlands; amending RCW 82.45.060, 90.70.025, 35.63.090, 35A.63.061, and 36.70.330; adding a new chapter to Title 90 RCW; creating new sections; prescribing penalties; and making an appropriation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. PURPOSE. The legislature believes that current laws, both state and federal, leave significant gaps in the coverage and protection afforded the state's wetlands. The shorelines management act affects only a limited area, the federal clean water act affects only filling of wetlands, and the hydraulics code affects only fish life.

The public obtains important health, welfare and safety benefits from retaining wetlands. Wetlands provide flood protection; retard soil erosion and improve water quality through natural filtration and absorption; purify surface water and ground water; provide essential habitat for fish and wildlife; maintain ground water, particularly during periods of drought, and surface water through the gradual release of stored flood flows.

NEW SECTION. Sec. 2. INTENT. The legislature declares that it is the public policy of the state to preserve, protect, and manage wetlands in order to promote public health, safety, and welfare; protect water quality; protect public and private property; conserve fish, wildlife, and other natural resources of the state; and allow for planned and orderly economic growth at both the state and local levels.

It is the goal of the state to institute a system of planning for and managing the decisions regarding wetlands so as to prevent further loss of wetlands, as measured by either significant differences in acreage or function, measured on a state-wide basis. To accomplish this the legislature intends that decisions made regarding wetlands be made within a decision-making framework that leads to considered, planned, and deliberate conclusions. This requires gathering data, educating the public and the decision makers, wetland acquisition where appropriate, and regulation as necessary.

The legislature intends to implement these policies through forging a partnership between the public and private sector to protect and enhance the state's remaining wetlands.

NEW SECTION. Sec. 3. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Department" means the department of ecology.

(2) "Director" means the director of the department of ecology.

(3) "Local government" means any county, incorporated city, or town that contains within its boundaries any wetlands subject to the provisions of this chapter.

(4) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state, local, or other governmental unit.

(5) "Plan" means a wetland management plan.

(6) "Wetlands" means those lands defined by the United States fish and wildlife service as lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For purposes of this definition wetlands must have one or more of the following attributes:

(a) At least periodically, the land supports predominantly hydrophytes;

(b) The substrate is predominantly undrained hydric soil; or

(c) The substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year.

(7) "Regulated wetlands," for purposes of regulation under this chapter, means those lands defined as wetlands under the federal clean water act, 33 U.S.C. Sec. 1251 et seq.

(8) "Wetland buffer zones" means lands bordering regulated wetlands, which may be managed to protect the regulated wetlands from adverse impacts of activities on adjacent lands.

(9) "Wetland management plan" means any plan adopted by a local government to protect and manage regulated wetlands and wetland buffer zones in a local jurisdiction and which meets the requirements of this chapter and rules adopted by the department under this chapter.

(10) "Wetland management standards" means those minimum standards adopted as rules by the department for wetland management plans under this chapter.

(11) "Wetlands of state-wide value" means those regulated wetlands determined by the department, with the concurrence of the local government, to have characteristics of exceptional value which should never be intentionally adversely impacted.

NEW SECTION. Sec. 4. DUTIES AND RESPONSIBILITIES OF THE DEPARTMENT. The department shall:

(1) Develop and maintain a state-wide inventory and maps of wetlands;

(2) Develop classification and rating systems for regulated wetlands;

(3) Develop with assistance of the association of Washington cities and the Washington state association of counties a model wetland management plan and a model wetland mitigation plan;

(4) Provide technical assistance to local governments in the development of plans;

(5) Identify wetlands of state-wide value;

(6) Approve and periodically review wetland management plans to ensure their compliance with wetland management standards;

(7) Pursue funding and provide financial assistance to the fullest extent possible;

(8) Provide local governments and the general public with information on wetland values and functions, protection, and management;

(9) Initiate or provide assistance to local governments in enforcement actions against any person performing activities in violation of this chapter or rules adopted by the department under this chapter;

(10) Develop an appeal process to include:

(a) Negotiation of disputed classifications or ratings;

(b) Resolution of jurisdictional disputes between local governments;

(d) Hearing of department decisions or recommendations by a neutral body of appeals;

(11) By September 15, 1991, the department shall report to the appropriate committees of the house of representatives and the senate whether local wetland management plans should include wetlands not currently designated as regulated wetlands.

NEW SECTION. Sec. 5. DUTIES AND RESPONSIBILITIES OF LOCAL GOVERNMENTS. Each local government shall:

(1) Prepare and verify, jointly with the department, an inventory of wetlands within its jurisdiction;

(2) Develop, implement, and administer wetland management plans according to the requirements of this chapter and rules adopted by the department under this chapter;

(3) Classify and rate wetlands according to the classification and rating systems developed by the department;

(4) Assure that any wetland permit process shall be coordinated and consolidated, to the extent practicable, with existing permits and processes within the jurisdiction;

(5) Develop, implement, and administer a mitigation plan consistent with the requirements of this chapter and rules adopted by the department;

(6) Develop an appeals process for local decisions; and

(7) Enforce its wetland management plans.

NEW SECTION. Sec. 6. WETLAND CLASSIFICATION AND RATING. (1) The department shall develop a system for classifying wetlands according to size; functional and resource value, including habitat values, water supply, storage or flood control qualities, water quality protection, and aesthetic and recreational uses; degree of sensitivity to disturbance; rarity; unique qualities; and other relevant criteria developed by the department.

(2) The department shall develop a rating system for use in distinguishing between and among wetlands of varying resource values, considering all the factors identified in subsection (1) of this section. The classification and rating systems shall be considered in the development of wetland management standards, determining wetland buffer zones, and establishing mitigation policies.

(3) In developing the classification and rating system, the department shall give consideration to and make provision for wetlands created by agricultural irrigation.

NEW SECTION. Sec. 7. DEVELOPMENT OF WETLAND MANAGEMENT STANDARDS. The department shall adopt minimum standards for wetland management plans by rule on or before August 1, 1990. These standards shall use the classification and rating system in section 6 of this act and shall provide for wetland buffer zones. Standards adopted by the department under this chapter shall apply to wetlands under the jurisdiction of chapter 90.58 RCW in addition to other requirements of chapter 90.58 RCW. Prior to adopting these standards, the department shall consult with affected state agencies and local jurisdictions and shall provide for adequate public involvement.

NEW SECTION. Sec. 8. ELEMENTS OF A WETLAND MANAGEMENT PLAN. At a minimum, a plan sufficient to meet the requirements of this chapter will include:

(1) An inventory and classifications system for all wetlands;

(2) Specific regulations governing the following activities when they occur in a regulated wetland or wetland buffer zone:

(a) The removal, excavation, disturbance, or dredging of soil, sand, gravel, or aggregate material of any kind;

(b) The dumping, discharging, or filling with any solid or liquid materials;

(d) The driving of pilings;

(e) The placing of obstructions;

(f) The construction, reconstruction, or demolition of any structure, or alteration of the size of any structure; or

(g) The destruction or alteration of wetland vegetation through clearing, harvesting, shading, or planting of vegetation;

(3) New or amended provisions of the comprehensive plan, where a comprehensive plan has been adopted;

(4) New or amended provisions, where necessary, of local plans and ordinances, including, but not limited to:

(a) A shoreline master program;

(b) Zoning, subdivision, and building ordinances; and

(5) A requirement that locally approved projects and activities in regulated wetlands and wetland buffer zones be consistent with the wetland management plan;

(6) A mitigation plan consistent with the requirements of this chapter and rules adopted thereunder.

NEW SECTION. Sec. 9. ADOPTION OF WETLAND MANAGEMENT PLAN. (1) From the date of adoption of wetland management standards by the department, all activities identified in section 8(2) of this act undertaken in regulated wetlands, as defined by this chapter or rules adopted by the department under this chapter, shall comply with these wetland management standards. Upon adoption of local wetland management plans, activities regulated by the local governments shall comply with the applicable wetland management plan and any other requirements under this chapter.

(2) Every local government shall prepare a proposed plan and submit it to the department within eighteen months after the effective date of the wetland management standards. Before submission of a proposed plan, a local government shall follow the provisions of chapter 34.05 RCW and hold at least one public hearing on the proposal.

(3) Within ninety days after receipt of a proposed plan, the department shall approve the proposal or notify the local government of specific modifications that must be made in order for the proposal to be approved.

(4) Following the department's approval of a proposed plan, the local government shall adopt the plan in accordance with its legislative procedures for enacting ordinances.

(5) Plan amendments required by the department or proposed by local governments shall be acted upon by the department in the same manner as the original plan.

(6) The wetland management plan shall be effective only after approval by the department and subsequent adoption by local government.

NEW SECTION. Sec. 10. EXEMPT ACTIVITIES. The following activities are exempted from regulation under this chapter:

(1) Ongoing and existing farming and ranching activities conducted on farm and agricultural lands as defined in RCW 84.34.020(2). Exempt activities include normal farm-related activities such as grazing, plowing, seeding, cultivating, harvesting for the production of food and fiber, or upland soil and water conservation practices; construction or maintenance of farm ponds or irrigation conveyance facilities, or the maintenance of drainage ditches and return flow channels;

(2) Construction or maintenance of farm buildings;

(3) Farm roads or forest roads constructed and maintained in accordance with best management practices to assure that flow and circulation patterns and chemical and biological characteristics of wetlands are not impaired and that any adverse effect on wetlands or wetland buffer zones will be avoided;

(4) Harvesting forest products or management of forest lands in accordance with the forest practices act, chapter 76.09 RCW;

(5) Construction of oil, gas, water, or sewage pipelines that receive a determination of nonsignificance pursuant to WAC 197-11-340 or a mitigated determination of nonsignificance pursuant to WAC 197-11-350;

(6) Normal maintenance, repair, as defined in WAC 173-14-040, or operation of the following, to the extent that any adverse effect on the regulated wetland or wetland buffer zone be otherwise avoided:

(a) Structures in existence on the effective date of this act;

(b) Public streets, highways, railroads, or roads, including improvements, within the right of way, or electric transmission and distribution power lines; and

(7) Reconstruction of recently damaged parts or serviceable dikes and levees in existence on the effective date of this act.

These exemptions shall not apply to any conversion of a regulated wetland to a use to which it was not previously subjected. Acts conducted pursuant to normal activities exempted in subsections (1) through (7) of this section shall not be considered conversions.

NEW SECTION. Sec. 11. MITIGATION. (1) Mitigation plans may be required as a condition of approval of an application affecting a regulated wetland. The department shall adopt minimum mitigation standards, the priorities for which shall be:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(e) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or

(f) Monitoring the impact and taking appropriate corrective measures.

(2) The purpose of the mitigation standards developed under subsection (1) of this section is to:

(a) Preserve and protect existing wetlands;

(b) Restore existing wetlands; and, where no reasonable alternative exists;

(3) The mitigation standards developed under subsection (1) of this section shall:

(a) Identify classifications and ratings of regulated wetlands within which any deliberate adverse impact to the wetland will not be permitted and those classifications and ratings of regulated wetlands for which mitigation may be appropriate;

(b) Assure that the highest classifications and ratings will require the most stringent mitigation efforts, for those classifications and ratings for which the department determines mitigation is appropriate; and

(c) Include a requirement for monitoring for a sufficiently long period to evaluate the success or failure of the mitigation measures. The department or the local government may require the applicant to post a bond to cover monitoring costs or the cost of any remedial actions.

NEW SECTION. Sec. 12. ADVISORY COMMITTEE. The governor shall appoint an advisory committee representing all interest groups to assist in preparing standards and guidelines. Members shall not be compensated for any costs incurred as a participant on the advisory committee.

NEW SECTION. Sec. 13. ENFORCEMENT AND PENALTIES. (1) The attorney general or the attorney for the local government shall bring such injunctive, declaratory, or other actions as are necessary to insure that no uses are made of the regulated wetlands of the state in conflict with the provisions and plans of this chapter, and to otherwise enforce the provisions of this chapter.

(2) Any person who shall fail to conform to the terms of this chapter or who shall undertake development within a regulated wetland or wetland buffer zone without first obtaining approval required under this chapter shall also be subject to a civil penalty not to exceed one thousand dollars for each violation. Each violation or each day of continued violation without a required approval shall constitute a separate violation.

(3) The penalty provided for in this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the department or local government, describing the violation with reasonable particularity and ordering the act or acts constituting the violation or violations to cease and desist or, in appropriate cases, requiring necessary corrective action to be taken within a specific and reasonable time.

(4) Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the department for remission or mitigation of such penalty. Upon receipt of the application, the department or local government may remit or mitigate the penalty upon whatever terms the department or local government in its discretion deems proper. Any penalty imposed under this section by the department shall be subject to review by the shorelines hearings board. Any penalty imposed under this section by the local government shall be subject to review by the local government legislative authority. Any penalty jointly imposed by the department and local government shall be appealed to the shorelines hearings board.

Sec. 14. Section 28A.45.060, chapter 223, Laws of 1969 ex. sess. as last amended by section 14, chapter 472, Laws of 1987 and RCW 82.45.060 are each amended to read as follows:

(1) There is imposed an excise tax upon each sale of real property at the rate of one and twenty-eight one-hundredths percent of the selling price. An amount equal to seven and seven-tenths percent of the proceeds of this tax to the state treasurer shall be deposited in the public works assistance account created in RCW 43.155.050.

(2) There is imposed an additional excise tax through June 30, 1989, upon each sale of real property at the rate of six one-hundredths of one percent of the selling price. The tax imposed under this subsection shall be deposited in the conservation area account under RCW 79.71.110.

(3) In addition to the excise taxes imposed in subsections (1) and (2) of this section, there is imposed an additional excise tax. If the assessor for a local government determines that a regulated wetland on property exempted in section 10 of this act has been deliberately altered, sold, and converted from its exempted use to a nonexempted use within a period of three years from its alteration, there shall be imposed upon the sale of the real property an additional excise tax at the rate of ten and twenty-eight hundredths percent of the selling price. The tax imposed in this section shall be deposited in the wetland preservation and acquisition fund, hereby created in the state treasury. Proceeds from the fund may be expended by the department to purchase property rights to protect wetlands of critical importance.

NEW SECTION. Sec. 15. FUNDING. The department shall work with the departments of wildlife and natural resources and interested private and public parties to develop plans to identify financial support of managing and acquiring wetlands.

NEW SECTION. Sec. 16. APPROPRIATION. The sum of one million dollars, or as much thereof as may be necessary, is appropriated from the water quality account to the department of ecology, for the biennium ending June 30, 1991, for the purposes of this act.

NEW SECTION. Sec. 17. ADDITIONAL AUTHORITY GRANTED. In addition to any other powers granted under this chapter, the department and local governments may:

(1) Accept grants, contributions, and appropriations from any person for the purposes of this chapter;

(2) Cooperate with other persons, including nonprofit organizations, in protecting and managing wetlands;

(3) Appoint advisory committees to assist in carrying out the purposes of this chapter;

(4) Contract for professional or technical services; and

(5) Adopt such other rules as are necessary and appropriate to carry out the provisions of this chapter.

NEW SECTION. Sec. 18. COOPERATION OF DEPARTMENT OF NATURAL RESOURCES. The department of natural resources shall provide to the department of ecology, in a timely manner, geographic information system data and maps which can be used as the state's wetland inventory.

NEW SECTION. Sec. 19. SHORT TITLE. This chapter shall be known and cited as the wetland management act of 1989.

Sec. 20. Section 5, chapter 451, Laws of 1985 and RCW 90.70.025 are each amended to read as follows:

In order to carry out its responsibilities under this chapter, the authority may:

(1) Develop interim proposals and recommendations, before the plan is adopted, concerning the elements identified in RCW 90.70.060;

(2) Enter into, amend, and terminate contracts with individuals, corporations, or research institutions for the purposes of this chapter;

(3) Receive such gifts, grants, and endowments, in trust or otherwise, for the use and benefit of the purposes of the authority. The authority may expend the same or any income therefrom according to the terms of the gifts, grants, or endowments;

(4) Conduct studies and research relating to Puget Sound water quality;

(5) Obtain information relating to Puget Sound from other state and local agencies;

(6) Conduct appropriate public hearings and otherwise seek to broadly disseminate information concerning Puget Sound;

(7) Receive funding from other public agencies;

(8) Prepare a biennial budget request for consideration by the governor and the legislature; and

(9) Adopt rules under chapter ((~~34.04~~)) 34.05 RCW as it deems necessary for the purposes of this chapter, except that wetlands shall be regulated pursuant to rules, guidelines, standards, and ordinances adopted pursuant to SHB 1392 or its successor.

Sec. 21. Section 35.63.090, chapter 7, Laws of 1965 as last amended by section 1, chapter 126, Laws of 1985 and RCW 35.63.090 are each amended to read as follows:

All regulations shall be worked out as parts of a comprehensive plan which each commission shall prepare for the physical and other generally advantageous development of the municipality and shall be designed, among other things, to encourage the most appropriate use of land throughout the municipality; to lessen traffic congestion and accidents; to secure safety from fire; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to promote a coordinated development of the unbuilt areas; to encourage the formation of neighborhood or community units; to secure an appropriate allotment of land area in new developments for all the requirements of community life; to conserve and restore natural beauty and other natural resources; to encourage and protect access to direct sunlight for solar energy systems; and to facilitate the adequate provision of transportation, water, sewerage and other public uses and requirements, including protection of the quality and quantity of ground water used for public water supplies. Each plan shall include a review of drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute Puget Sound or waters entering Puget Sound. Each plan shall also include an element for the protection and management of wetlands in accordance with chapter 90.-- RCW (sections 1 through 13, 15, and 17 through 19 of this act).

Sec. 22. Section 35A.63.061, chapter 119, Laws of 1967 ex. sess. as last amended by section 2, chapter 126, Laws of 1985 and RCW 35A.63.061 are each amended to read as follows:

The comprehensive plan shall be in such form and of such scope as the code city's ordinance or charter may require. It may consist of a map or maps, diagrams, charts, reports and descriptive and explanatory text or other devices and materials to express, explain, or depict the elements of the plan; and it shall include a recommended plan, scheme, or design for each of the following elements:

(1) A land-use element that designates the proposed general distribution, general location, and extent of the uses of land. These uses may include, but are not limited to, agricultural, residential, commercial, industrial, recreational, educational, public, and other categories of public and private uses of land. The land-use element shall also include estimates of future population growth in, and statements of recommended standards of population density and building intensity for, the area covered by the comprehensive plan. The land use element shall also provide for protection of the quality and quantity of ground water used for public water supplies and shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute Puget Sound or waters entering Puget Sound. Each plan shall also include an element for the protection and management of wetlands in accordance with chapter 90.-- RCW (sections 1 through 13, 15, and 17 through 19 of this act).

(2) A circulation element consisting of the general location, alignment, and extent of existing and proposed major thoroughfares, major transportation routes, and major terminal facilities, all of which shall be correlated with the land-use element of the comprehensive plan.

Sec. 23. Section 36.70.330, chapter 4, Laws of 1963 as last amended by section 3, chapter 126, Laws of 1985 and RCW 36.70.330 are each amended to read as follows:

The comprehensive plan shall consist of a map or maps, and descriptive text covering objectives, principles and standards used to develop it, and shall include each of the following elements:

(1) A land use element which designates the proposed general distribution and general location and extent of the uses of land for agriculture, housing, commerce, industry, recreation, education, public buildings and lands, and other categories of public and private use of land, including a statement of the standards of population density and building intensity recommended for the various areas in the jurisdiction and estimates of future population growth in the area covered by the comprehensive plan, all correlated with the land use element of the comprehensive plan. The land use element shall also provide for protection of the quality and quantity of ground water used for public water supplies and shall review drainage, flooding, and storm water run-off in the area and nearby jurisdictions and provide guidance for corrective actions to mitigate or cleanse those discharges that pollute Puget Sound or waters entering Puget Sound. The land use element shall also provide for the protection and management of wetlands in accordance with chapter 90.-- RCW (sections 1 through 13, 15, and 17 through 19 of this act);

(2) A circulation element consisting of the general location, alignment and extent of major thoroughfares, major transportation routes, trunk utility lines, and major terminal facilities, all of which shall be correlated with the land use element of the comprehensive plan;

(3) Any supporting maps, diagrams, charts, descriptive material and reports necessary to explain and supplement the above elements.

NEW SECTION. Sec. 24. LIBERAL CONSTRUCTION. This chapter is exempted from the rule of strict construction, and it shall be liberally construed to give full effect to the objectives and purposes for which it was enacted.

NEW SECTION. Sec. 25. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 26. CAPTIONS. Captions as used in this act do not constitute any part of the law.

NEW SECTION. Sec. 27. Sections 1 through 13, 15, and 17 through 19 of this act shall constitute a new chapter in Title 90 RCW.