AN ACT Relating to the conservation and management of the state's wetland resources; adding a new chapter to Title 90 RCW; and making appropriations.

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

NEW SECTION. Sec. 1. PURPOSE AND INTENT. The legislature finds that the state's wetland resources perform a number of valuable biologic, physical, and economic functions, including: Habitat, through the provision of breeding, nesting, rearing, and feeding habitat for many fish and wildlife species; water supply, by temporarily storing surface water and allowing it to filter to the ground water system; flood control, by slowing and storing water during flood events; shoreline stabilization, thereby reducing erosion; water quality protection, by filtering out sediments, excess nutrients, toxic chemicals and other pollutants; and aesthetic, recreational and educational functions, by providing diverse open spaces for visual enjoyment, outdoor recreation, and scientific study.

The legislature also finds that the values represented by wetlands may, at times, come into conflict with other essential elements of state policy, including management of other productive natural resources, economic development, the need to provide land for housing for Washington's growing population, and the development of adequate transportation systems. There is, therefore, a need for a balanced, flexible approach to conserving and managing wetlands in order to implement other important social programs.

The legislature further finds that it is neither economically feasible nor desirable to permanently preserve all types of wetlands from alteration, when considering other important state goals and policies. It is necessary, therefore, to develop a system for prioritizing wetlands and for focusing preservation efforts on those which are most ecologically valuable.

In addition, it finds that many wetlands and surrounding lands are in private ownership, and that the entire burden of wetland protection and regulation often falls on private property owners. A public-private partnership is necessary to preserve wetlands effectively. Nonregulatory approaches, including public acquisition and economic incentives, are therefore needed to protect the public values represented by wetlands, to equitably share the burden of wetland conservation, and to permit property owners to realize a reasonable return on investment.

It also finds that current approaches to identifying, conserving, and managing wetland resources in the state is inconsistent, uncertain, and uncoordinated. Many state agencies and municipalities define and classify wetlands differently and most have not enacted comprehensive management programs. Coordinated planning and a coherent policy framework is, therefore, in the best interest of the state's citizens.

The legislature therefore declares that this chapter is intended to accomplish the following purposes:

(1) Adoption of a long-term goal of increasing the quality and quantity of the state's wetland resources, as defined by acreage and function, and to achieve a balance of gains and losses and no overall net loss in wetland functions and values in the near-term. This policy does not imply that all wetlands will in every instance be preserved, but that an equilibrium between losses and gains will be achieved on a state-wide basis. Some wetland alterations may occur as a result of beneficial human activities, and mitigation may contribute to achieving the overall goal;

(2) Adoption of a consistent, uniform definition of "wetlands," based on characteristics of soil, vegetation, and hydrology, for use by all agencies of state and local government in the development of wetland management programs and in regulating public and private activities in wetlands;

(3) Adoption of a framework for classifying wetlands and prioritizing the most valuable resources for preservation through regulation, acquisition, and incentives;

(4) Adoption of a comprehensive mitigation policy that encourages the use of creative approaches to mitigation, provides flexibility, and recognizes opportunities for on-site and off-site replacement, restoration and creation of wetlands to achieve the state's long-term goal; and

(5) Creation of a wetland planning and permitting process that is integrated to the fullest extent possible with the planning activities of state and local government and with the existing regulatory programs of federal resource agencies with jurisdiction.

NEW SECTION. Sec. 2. DEFINITIONS. Unless the context clearly requires otherwise, the following definitions apply through this chapter.

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

(2) "Local government" means all counties and cities of Washington state.

(3) "Mitigation" means and includes: (a) Avoiding an impact altogether by not taking a certain action or parts of an action; (b) minimizing impacts by limiting the degree or magnitude of an action or its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts; (c) rectifying an impact by repairing, rehabilitating, or restoring the affected environment; (d) reducing or eliminating an impact over time by preservation and maintenance operations during the life of an action; (e) compensating for the impact by replacing, enhancing, or providing substitute resources or environments; or (f) monitoring the impact and taking appropriate corrective measures.

(4) "Regulated activity" means any of the following actions in a wetland not otherwise exempt from the provisions of this chapter: The removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate material; the dumping, discharging, or filling with any materials; the drainage or disturbance of the water level or water table; the driving of pilings or placing of obstructions; or the harvesting or destruction of vegetation that would alter the character of the wetland, but not including maintenance activities such as mowing.

(5) "Wetland" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include marshes, swamps, bogs, and similar areas.

(6) "Wetland commission" means the body established by section 11 of this act to develop guidelines and approve rules for the development of a state wetland conservation and management program.

(7) "Wetland management plan" means the plan required by section 5 of this act. Wetland management plans include: Local plans, developed by individual cities and counties; special area management plans, developed cooperatively by two or more jurisdictions which may include participation by state and federal agencies; and plans prepared by the department.

NEW SECTION. Sec. 3. PERMIT PROCESS. (1) All regulated activities within wetlands not otherwise exempt from the requirements of this chapter shall require a permit from the department, or from the applicable local government with an approved management plan. To the maximum extent possible, the review and processing of applications for wetlands shall be consolidated or coordinated with the existing permits and processes of affected agencies and shall not result in an independent permit process. A public hearing may be held at the discretion of the department or the applicable local government agency.

(2) Applications shall contain a narrative description of the proposed activity, along with supporting maps and graphics; a delineation of the wetland boundaries performed by a qualified professional; an inventory and assessment of the plant, animal, fisheries, and habitat functions and values of the wetland; appropriate geologic and hydrologic studies; and a proposed mitigation plan, including a monitoring program.

(3) Within sixty days from submission of a complete application, the department or the applicable local government agency shall approve, approve with conditions, or deny a permit. An opportunity for administrative appeal of permit decisions shall be established by local governments and the department.

(4) The department shall adopt rules specifying the form and content of applications, establishing time limits for decisions, and coordinating permits with the permitting activities of other state and federal agencies.

(5) Administration of the wetland permit process shall be delegated by the department to those local governments with wetland management plans approved pursuant to the procedures in this chapter. Local governments authorized to issue permits may impose a reasonable permit fee.

NEW SECTION. Sec. 4. EXEMPTIONS. The following activities shall not be subject to the permitting and mitigation requirements of this chapter:

(1) Existing and ongoing agricultural activities, including farming, harvesting for the production of food and fiber, ranching, grazing of animals, horticulture, aquaculture, irrigation, soil and water conservation practices, and construction and maintenance of farm roads;

(2) Forest practices, including silviculture, timber harvesting, and road construction;

(3) Man-made facilities for the treatment, conveyance, or storage of water, including irrigation ditches, drainage swales and ditches, landscape features, stock ponds, reservoirs, and other surface water impoundments, stormwater facilities, and wastewater facilities;

(4) Emergency construction necessary for the public health and safety;

(5) Activities in or the filling of less than one acre of isolated wetlands which are not associated with shorelines designated pursuant to chapter 90.58 RCW;

(6) Minor activities in wetlands as defined in approved wetland management plans;

(7) Replacement of improvements damaged or destroyed by fire, flood, other catastrophe, or act of God;

(8) Creation of legal lots of record of one acre or less; and

(9) Creation of lots within subdivisions and short subdivisions which have received preliminary or final approval before the effective date of this act.

NEW SECTION. Sec. 5. WETLAND MANAGEMENT PLANS. (1) All cities and counties shall prepare wetland management plans and shall submit them to the department for approval. The plans shall contain:

(a) An inventory of all wetlands within the jurisdiction, indicating their location, size, and general functions and values;

(b) A classification of those wetlands included in the inventory, recognizing the factors described in section 6 of this act;

(d) A management element, including proposed regulations, establishing a wetland permit process and any applicable permit fee, defining categories of minor activities which shall be exempt from the wetland permit process, identifying sources of funds for the acquisition of wetlands, potential incentives, and establishing a wetland mitigation bank. The management element shall also recognize the varied functions of wetlands identified in section 1 of this act and shall authorize the use of wetlands for the storage of surface water consistent with the preservation of other wetland functions and values;

(e) A procedural element, indicating how the wetland permit process will be integrated in the jurisdiction's existing programs, and how affected property owners may appeal a proposed wetland boundary or classification; and

(f) Such other elements as specified in guidelines developed by the department.

(2) The owners of land identified in the inventory shall be notified of the size, functions, and proposed classification of wetlands. Local plans shall be adopted by ordinance after notice to affected property owners, a public hearing, and environmental review under chapter 43.21C RCW. The hearings shall consider the economic and fiscal impacts of implementing the proposed plan.

(3) All local governments shall submit their management plans to the department within twelve months of the effective date of the department's rules. Within ninety days of receipt of a proposed plan, the department shall in writing approve it or indicate any deficiencies. Any deficiencies shall be corrected within sixty days and the plan resubmitted to the department.

(4) Adopted plans shall be reviewed regularly and revised as necessary to reflect errors, omissions, or changed conditions. Local governments shall submit an annual report to the department indicating trends in wetlands gains and losses and providing such other data as required by the department.

(5) Within six months of the effective date of this act, the department shall adopt guidelines regarding the preparation and contents of local wetland management plans, including appropriate methodologies for performing wetland inventories, procedures for classifying and rating wetland values, and guidelines for wetland use and development. The department shall also develop programs to assist in training local government personnel in implementing the provisions of this chapter.

NEW SECTION. Sec. 6. WETLAND CLASSIFICATION. (1) Identified wetlands shall be classified or rated according to their overall value considering, but not limited to, the following factors: Habitat values; water supply, storage or flood control functions; water quality protection; aesthetic and recreational functions; size; whether isolated or part of a larger system; whether natural, man-made, or induced by human activities; local climactic conditions; and other relevant criteria developed by the department.

(2) The classifications shall generally distinguish between wetlands of high, medium, and low resource value. They shall be used to determine appropriate mitigation measures and to establish priorities for regulation and acquisition.

(3) The department shall provide written guidelines, technical assistance, and training programs to assist local governments in developing consistent methodologies for evaluating habitat values.

(4) To assure application of the highest standards of technical expertise in wetland identification, classification, and mitigation, the department shall develop a process and program to improve the training, experience, and qualifications of wetland specialists. In implementing the provisions of this chapter, the department and local governments shall require to the fullest extent possible that all work performed by agency staff or private sector consultants be performed by wetland specialists.

NEW SECTION. Sec. 7. MITIGATION. Mitigation plans may be required in connection with applications for proposals involving regulated wetland activities. As defined in this chapter, approaches to mitigating wetland impacts may include the restoration, enhancement, or creation of wetlands on-site or off-site and shall consider the relative values of wetlands as identified in approved management plans. State and local agencies should have the flexibility to select mitigation options that best protect the most valuable functions of wetlands according to the following guidelines:

(1) Mitigation shall be designed to achieve the long-term goal of increasing the quality and quantity of the state's wetland resources.

(2) The stringency of mitigation measures required shall generally reflect the quality of the wetland affected by a regulated activity.

(3) Wetlands required to be replaced as part of a mitigation plan shall be similar to or higher in value than those filled or otherwise altered. The amount of wetlands required to be replaced through mitigation shall depend on the affected wetland values subject to mitigation; in terms of acreage, this may result in greater or less than a one to one ratio. The burden shall be upon the applicant to demonstrate through appropriate studies or models, that replacing a lesser amount will provide wetlands of greater value.

(4) Any off-site mitigation shall occur: (a) On property under the applicant's ownership or control and located within the same drainage basin as the site proposed for regulated wetland activities; (b) on land established by one or more jurisdictions as a mitigation bank; or (c) elsewhere within the jurisdiction on property within the applicable local government's ownership or control. In the case of off-site mitigation on privately owned land, this land shall be dedicated to the appropriate public agency or retained in private ownership subject to recorded restrictions which shall prevent any future development in the replacement wetland area.

(5) The applicant may also propose to donate land or money to a wetland mitigation bank established under this chapter. Any land proposed for donation must be a valuable addition to the state's wetland resources. Contributions of funds shall be in an amount sufficient to acquire, restore, or enhance and manage a wetland of comparable value to the site proposed for a regulated activity. Such amounts shall be proportional to the nature and extent of the regulated activity and shall consider the value of any other required mitigation. All such donated funds shall be subject to the requirements of RCW 82.02.020.

(6) Mitigation shall include monitoring for a period not exceeding five years, maintenance of mitigative actions, and any necessary remedial action. The extent of any required monitoring program shall be proportionate to the nature, extent, and cost of required mitigation.

(7) To the extent practical, replacement or restoration of wetlands should be undertaken concurrently with the permitted wetland alteration.

NEW SECTION. Sec. 8. WETLAND MITIGATION BANK. (1) The department, or cities and counties with approved management plans, in cooperation with federal resource agencies, may establish wetland mitigation banks for the following purposes: To preserve high quality wetlands through acquisition; to carry out restoration or enhancement projects; to accept donations of wetland property or funds in connection with mitigation projects; and to initiate innovative mitigation projects or research. State and local agencies are encouraged to cooperatively establish regional mitigation banks under interlocal agreements to further the long-term goal of increasing the quality and quantity of the state's wetland resources.

(2) The department shall establish rules and procedures for the creation, operation, and management of wetland mitigation banks.

NEW SECTION. Sec. 9. INCENTIVES. The department shall research existing state and federal laws, the wetland programs of other jurisdictions, and the programs of nonprofit conservation organizations to help identify incentive programs which may effectively encourage private property owners to donate wetlands to state and local agencies or to retain them in an undeveloped state. Those programs that are within the existing authorization of the department and of local governments shall be included within the wetland management plan required by section 5 of this act. Within six months of the effective date of this act, the department shall submit a report to the legislature containing recommendations for any additional authorization or other legislative actions necessary to implement additional incentives.

NEW SECTION. Sec. 10. WETLANDS TRUST FUND. (1) A wetlands trust fund is hereby created within the state treasury. Money may be placed in the wetlands trust fund from the proceeds of bonds when authorized by the legislature or from any other lawful source. Money in the wetlands trust fund shall be used to make low-interest loans to local governments to acquire the fee or any lesser interest which will preserve priority wetlands.

(2) The department shall adopt appropriate conditions and criteria for eligibility for loans and may establish acquisition priorities.

(3) Moneys received from local governments in repayment of loans shall be paid into the wetlands trust fund for uses consistent with this section.

NEW SECTION. Sec. 11. WETLANDS COMMISSION CREATED. (1) There is hereby created a state wetlands commission consisting of eleven members. The members of the commission shall be appointed by the governor with the advice and consent of the senate. The members shall serve for a term of four years. In case of vacancy, the governor shall fill the vacancy for the unexpired term of the commissioner whose office has become vacant.

(2) The governor shall make his appointments as follows: The director of the department of ecology or designee; the director of the department of wildlife or designee; the director of the department of natural resources or designee; the director of the department of transportation or designee; one county commissioner or councilmember or designee; one city councilmember or designee; two representatives recommended by building and development associations; two representatives recommended by environmental and conservation organizations; and one member recommended by an institution of higher education in the state and experienced in wetland functions.

(3) A majority of the commission shall constitute a quorum for the transaction of commission business. Action may be taken by the commission and motions and resolutions adopted upon the affirmative vote of a majority of the full membership. The governor shall appoint a chairman for the conduct of commission business.

(4) Members of the commission shall serve without compensation, but may be reimbursed for expenses necessarily incurred in the discharge of their official functions.

(5) The department shall provide staff support as is necessary for the efficient conduct of the commission's business.

(6) The commission shall cease to exist four years after the effective date of this act.

NEW SECTION. Sec. 12. POWERS AND FUNCTIONS OF WETLAND COMMISSION. The commission shall develop guidelines and procedures for adoption as rules by the department for implementing the provisions of this chapter. These guidelines and procedures shall include the wetland permit process, the preparation and contents of wetland management plans, the classification of wetlands, establishment and operation of the wetland mitigation bank, recommendations for incentives, and acquisition priorities and operation of the wetland trust fund.

NEW SECTION. Sec. 13. RULES. (1) The department shall prepare proposed rules consistent with the direction and guidelines of the commission.

(2) Within six months of the effective date of this act, and after review and approval by the commission, the department shall adopt any rules necessary to implement the requirements of this chapter. Upon adoption, all agencies of state and local government shall adopt rules consistent with this chapter and consistent with the rules adopted by the department.

(3) The department shall develop and maintain a functional, complete, and up-to-date composite state wetlands map to provide guidance to state and local government agencies and private property owners as to the location of wetlands and to monitor achievement of the goals of this chapter.

(4) The department shall submit an annual report to the legislature showing gains and losses to the state's wetland resources.

NEW SECTION. Sec. 14. COORDINATION WITH FEDERAL PROGRAMS. As soon as practicable after adoption of the rules required by section 12 of this act, the department shall make application to the United States environmental protection agency for assuming responsibility for wetland activities encompassed by the provisions of section 404 of the clean water act. The department may enter into agreements as are necessary, consistent with the intent of this chapter, to assume and exercise delegated responsibilities.

NEW SECTION. Sec. 15. PUBLIC EDUCATION PROGRAM. Within six months of the effective date of this act, the department shall conduct a public education program on the provisions of this chapter, and the rules adopted under this chapter. This program shall inform the public and property owners about the location of wetlands, the values these wetlands provide, regulations concerning their modification, and the existence of financial incentives and other options available to protect and enhance wetlands. Additional education efforts should provide technical assistance to local governments.

NEW SECTION. Sec. 16. APPROPRIATION. (1) There is appropriated from the general fund to the department of ecology for the biennium ending June 30, 1991, the sum of four hundred thousand dollars to carry out the provisions of this act. The appropriation shall be allocated as follows:

(a) Three hundred thousand dollars shall be made available to local governments through grants to support development of wetland management plans; in determining the amounts of individual grants, the department may consider the resources otherwise available to each jurisdiction, and other factors deemed relevant; and

(b) One hundred thousand dollars is allocated to the department of ecology for providing staff support to the wetlands commission in the development of the rules, standards, and guidelines required by this act.

(2) The sum of one million dollars or as much thereof as may be necessary, is appropriated to the wetlands trust fund established under section 10 of this act, from the general fund, for the biennium ending June 30, 1991.

NEW SECTION. Sec. 17. APPLICABILITY. The provisions of this act shall be applicable to all agencies of state government, counties, cities, and public and municipal corporations and to all wetlands owned or administered by them.

NEW SECTION. Sec. 18. SHORT TITLE. This chapter shall be known and cited as the wetlands conservation and management act of 1989.

NEW SECTION. Sec. 19. SEVERABILITY. 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. This act is intended to be prospective, not retroactive in its application.

NEW SECTION. Sec. 20. Captions as used in sections 1 through 19 of this act do not constitute any part of the law.

NEW SECTION. Sec. 21. Sections 1 through 15 and 17 through 20 of this act shall constitute a new chapter in Title 90 RCW.