AN ACT Relating to the siting of floating finfish aquaculture facilities in state marine waters; amending RCW 90.58.140 and 79.24.580; adding a new section to chapter 90.48 RCW; adding new sections to chapter 90.58 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. (1) Properly sited floating finfish aquaculture facilities are a beneficial, water-dependent use of the state's aquatic lands resulting in nonconsumptive use of state waters, in long-term over short-term benefits, and are predicated on high water quality.

(2) It is necessary to institute a more expeditious siting and permitting system for floating finfish aquaculture in order to secure the state's position in national and international finfish marketing and to secure the resulting economic benefits.

(3) Local government should share directly in the income produced from state-owned aquatic lands leased for floating finfish aquaculture.

(4) Sections 2 through 5 of this act establish a cooperative relationship between local and state government. Because of various state agencies' expertise in finfish aquaculture and the need for predictable, state-wide policies and standards, the state needs to provide standards that address biological and environmental impacts of floating finfish aquaculture facilities.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout sections 3 through 5 of this act.

(1) "Department" means the department of natural resources.

(2) "Finfish aquaculture facility" means any floating operation authorized to raise finfish in state marine waters.

NEW SECTION. Sec. 3. (1) The department, with the advice and cooperation of the departments of ecology, fisheries, and agriculture, shall adopt rules establishing standards for siting a finfish aquaculture facility in state waters. The department shall adopt the standards within ninety days of the effective date of this section. The rules shall address the following areas:

(a) Depths of facilities;

(b) Current velocities at facilities;

(d) Habitats of special significance;

(e) Fish health standards;

(f) Predator exclusion measures; and

(g) Site characterization surveys and monitoring programs to mean a site characterization survey, bathymetric survey, hydrographic survey, diver survey, baseline survey, and annual monitoring programs to include a benthic survey, water quality survey, and hydrographic survey.

(2) The rules shall be adopted pursuant to the administrative procedure act, chapter 34.05 RCW, and shall be subject to review under RCW 90.58.180 (4) and (5).

(3) Local governments shall incorporate under RCW 90.58.120 the standards adopted as rules by the department within ninety days of adoption of the rules or any final decision on any appeal of the rules.

(4) The rules adopting the standards shall preempt any requirements of a shoreline master program that would otherwise be applicable to a facility if the requirement is inconsistent, more stringent, duplicative, or addresses any areas regarding finfish aquaculture that have been addressed in the standards adopted in rules.

(5) Any proposed facility not meeting the standards adopted under section 3 of this act may be authorized if the applicant can establish that the proposed facility does not have a significant adverse impact on the environment which cannot be mitigated.

NEW SECTION. Sec. 4. (1) Any policy, use regulation, or other standard in a local master program applicable to a finfish aquaculture facility dealing with areas not covered by the rules adopted under section 3 of this act shall not prohibit a facility unless it would have a significant adverse impact on the environment: PROVIDED, That a local master program may authorize a facility even if there is a significant adverse impact if the impact can be mitigated.

(2) A local government shall not restrict finfish aquaculture facilities to any specified locations or districts. A facility shall be authorized if it complies with the requirements of sections 2 through 5 of this act and the shoreline management act of 1971.

NEW SECTION. Sec. 5. In any appeal to the shorelines hearings board on a permit for a finfish aquaculture facility, the prevailing party shall be awarded reasonable attorneys' fees and costs. In any appeal of a decision of the shorelines hearings board on a permit for a finfish aquaculture facility, the prevailing party shall be awarded reasonable attorneys' fees and costs.

Sec. 6. Section 14, chapter 286, Laws of 1971 ex. sess. as last amended by section 1, chapter 22, Laws of 1988 and RCW 90.58.140 are each amended to read as follows:

(1) A development shall not be undertaken on the shorelines of the state unless it is consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program.

(2) A substantial development shall not be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter.

A permit shall be granted:

(a) From June 1, 1971, until such time as an applicable master program has become effective, only when the development proposed is consistent with: (i) The policy of RCW 90.58.020; and (ii) after their adoption, the guidelines and rules of the department; and (iii) so far as can be ascertained, the master program being developed for the area;

(b) After adoption or approval, as appropriate, by the department of an applicable master program, only when the development proposed is consistent with the applicable master program and the provisions of chapter 90.58 RCW.

(3) The local government shall establish a program, consistent with rules adopted by the department, for the administration and enforcement of the permit system provided in this section. The administration of the system so established shall be performed exclusively by the local government.

(4) The local government shall require notification of the public of all applications for permits governed by any permit system established pursuant to subsection (3) of this section by ensuring that:

(a) A notice of such an application is published at least once a week on the same day of the week for two consecutive weeks in a legal newspaper of general circulation within the area in which the development is proposed; and

(b) Additional notice of such an application is given by at least one of the following methods:

(i) Mailing of the notice to the latest recorded real property owners as shown by the records of the county assessor within at least three hundred feet of the boundary of the property upon which the substantial development is proposed;

(ii) Posting of the notice in a conspicuous manner on the property upon which the project is to be constructed; or

(iii) Any other manner deemed appropriate by local authorities to accomplish the objectives of reasonable notice to adjacent landowners and the public.

The notices shall include a statement that any person desiring to submit written comments concerning an application, or desiring to receive a copy of the final order concerning an application as expeditiously as possible after the issuance of the order, may submit the comments or requests for orders to the local government within thirty days of the last date the notice is to be published pursuant to ((~~subsection~~)) (a) of this subsection. The local government shall forward, in a timely manner following the issuance of an order, a copy of the order to each person who submits a request for the order.

If a hearing is to be held on an application, notices of such a hearing shall include a statement that any person may submit oral or written comments on an application at the hearing.

(5) The system shall include provisions to assure that construction pursuant to a permit will not begin or be authorized until thirty days from the date the final order was filed as provided in subsection (6) of this section; or until all review proceedings are terminated if the proceedings were initiated within thirty days from the date of filing as defined in subsection (6) of this section except as follows:

(a) In the case of any permit issued to the state of Washington, department of transportation, for the construction and modification of SR 90 (I-90) on or adjacent to Lake Washington, the construction may begin after thirty days from the date of filing, and the permits are valid until December 31, 1995;

(b) If a permit is granted by the local government and (i) the granting of the permit is appealed to the shorelines hearings board within thirty days of the date of filing, (ii) the hearings board approves the granting of the permit by the local government or approves a portion of the substantial development for which the local government issued the permit, and (iii) an appeal for judicial review of the hearings board decision is filed pursuant to chapter 34.05 RCW, the permittee may request, within ten days of the filing of the appeal with the court, a hearing before the court to determine whether construction may begin pursuant to the permit approved by the hearings board or to a revised permit issued pursuant to the order of the hearings board. If, at the conclusion of the hearing, the court finds that construction pursuant to such a permit would not involve a significant, irreversible damaging of the environment, the court may allow the permittee to begin the construction pursuant to the approved or revised permit as the court deems appropriate. The court may require the permittee to post bonds, in the name of the local government that issued the permit, sufficient to remove the substantial development or to restore the environment if the permit is ultimately disapproved by the courts, or to alter the substantial development if the alteration is ultimately ordered by the courts. Construction pursuant to a permit revised at the direction of the hearings board may begin only on that portion of the substantial development for which the local government had originally issued the permit, and construction pursuant to such a revised permit on other portions of the substantial development may not begin until after all review proceedings are terminated. In such a hearing before the court, the burden of proving whether the construction may involve significant irreversible damage to the environment and demonstrating whether such construction would or would not be appropriate is on the appellant;

(c) If a permit is granted by the local government and the granting of the permit is appealed directly to the superior court for judicial review pursuant to the proviso in RCW 90.58.180(1), the permittee may request the court to remand the appeal to the shorelines hearings board, in which case the appeal shall be so remanded and construction pursuant to such a permit shall be governed by the provisions of ((~~subsection~~)) (b) of this subsection or may otherwise begin after review proceedings before the hearings board are terminated if judicial review is not thereafter requested pursuant to chapter 34.05 RCW;

(d) In the case of a finfish aquaculture facility, (b) and (c) of this subsection shall also apply if a permit is not granted by local government. The court may require the appellant to post a bond, in the name of the local government, pending resolution of the appeal.

If a permittee begins construction pursuant to ((~~subsections~~)) (a), (b), or (c) of this subsection, the construction is begun at the permittee's own risk. If, as a result of judicial review, the courts order the removal of any portion of the construction or the restoration of any portion of the environment involved or require the alteration of any portion of a substantial development constructed pursuant to a permit, the permittee is barred from recovering damages or costs involved in adhering to such requirements from the local government that granted the permit, the hearings board, or any appellant or intervener.

(6) Any ruling on an application for a permit under the authority of this section, whether it is an approval or a denial, shall, concurrently with the transmittal of the ruling to the applicant, be filed with the department and the attorney general. With regard to a permit other than a permit governed by subsection (12) of this section, "date of filing" as used herein means the date of actual receipt by the department. With regard to a permit for a variance or a conditional use, "date of filing" means the date a decision of the department rendered on the permit pursuant to subsection (12) of this section is transmitted by the department to the local government. The department shall notify in writing the local government and the applicant of the date of filing.

(7) Applicants for permits under this section have the burden of proving that a proposed substantial development is consistent with the criteria that must be met before a permit is granted. In any review of the granting or denial of an application for a permit as provided in RCW 90.58.180 (1) and (2), the person requesting the review has the burden of proof.

(8) Any permit may, after a hearing with adequate notice to the permittee and the public, be rescinded by the issuing authority upon the finding that a permittee has not complied with conditions of a permit. If the department is of the opinion that noncompliance exists, the department shall provide written notice to the local government and the permittee. If the department is of the opinion that the noncompliance continues to exist thirty days after the date of the notice, and the local government has taken no action to rescind the permit, the department may petition the hearings board for a rescission of the permit upon written notice of the petition to the local government and the permittee if the request by the department is made to the hearings board within fifteen days of the termination of the thirty-day notice to the local government.

(9) The holder of a certification from the governor pursuant to chapter 80.50 RCW shall not be required to obtain a permit under this section.

(10) A permit shall not be required for any development on shorelines of the state included within a preliminary or final plat approved by the applicable state agency or local government before April 1, 1971, if:

(a) The final plat was approved after April 13, 1961, or the preliminary plat was approved after April 30, 1969; and

(b) The development is completed within two years after June 1, 1971.

(11) The applicable state agency or local government is authorized to approve a final plat with respect to shorelines of the state included within a preliminary plat approved after April 30, 1969, and before April 1, 1971: PROVIDED, That any substantial development within the platted shorelines of the state is authorized by a permit granted pursuant to this section, or does not require a permit as provided in subsection (10) of this section, or does not require a permit because of substantial development occurred before June 1, 1971.

(12) Any permit for a variance or a conditional use by local government under approved master programs must be submitted to the department for its approval or disapproval.

NEW SECTION. Sec. 7. In the case of a finfish aquaculture facility, any appeal of a permit to the shorelines hearings board under chapter 90.58 RCW shall be combined, if applicable, with any appeal of state or federal discharge permit under chapter 90.48 RCW for the same facility.

NEW SECTION. Sec. 8. A new section is added to chapter 90.48 RCW to read as follows:

In the case of a finfish aquaculture facility, any appeal of a permit to the shorelines hearings board under chapter 90.58 RCW shall be combined, if applicable, with any appeal of state or federal discharge permit under chapter 90.48 RCW for the same facility.

Sec. 9. Section 9, chapter 167, Laws of 1961 as last amended by section 1, chapter 350, Laws of 1987 and RCW 79.24.580 are each amended to read as follows:

After deduction for management costs as provided in RCW 79.64.040 and payments to towns under RCW 79.92.110(2), all moneys received by the state from the sale or lease of state-owned aquatic lands and from the sale of valuable material from state-owned aquatic lands shall be distributed as follows:

(1) To the state building bond redemption fund such amounts necessary to retire bonds issued pursuant to RCW 79.24.630 through 79.24.647 prior to January 1, 1987, and for which tide and harbor area revenues have been pledged((,)); and

(2) All moneys not deposited for the purposes of subsection (1) of this section shall be deposited in the aquatic lands enhancement account which is hereby created in the state treasury. After appropriation, these funds shall be used solely for aquatic lands enhancement projects; for the purchase, improvement, or protection of aquatic lands for public purposes; for providing and improving access to such lands; and for volunteer cooperative fish and game projects, except that moneys received from leases of state-owned aquatic lands for a finfish aquaculture facility shall be distributed in the following manner:

(a) One-half of the moneys shall be deposited into the aquatic lands enhancement account; and

(b) One-half of the moneys shall be deposited into the local government aquaculture distribution account which is hereby created in the state treasury. Moneys from this account shall be distributed to local governments in the same proportion as the surface acreage of finfish net-pen aquaculture facilities located in that local government's jurisdiction. Expenditure of these funds shall be at the discretion of the local government for any purposes deemed appropriate by local government.

NEW SECTION. Sec. 10. Sections 2 through 5 and 7 of this act are each added to chapter 90.58 RCW.