AN ACT Relating to wetlands; amending RCW 35.63.090, 35A.63.061, and 36.70.330; adding a new chapter to Title 90 RCW; creating a new section; prescribing penalties; and making appropriations.

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

NEW SECTION. Sec. 1. LEGISLATIVE FINDINGS. The legislature finds that wetlands are valuable natural resources which: Provide a natural means of flood and storm damage protection through absorption and storage of water during high runoff periods, thereby reducing flood crests and preventing loss of life and property; serve as a transition zone between dry land and water courses, thereby retarding soil erosion and improving water quality through natural filtration and absorption; protect and preserve drinking water supplies by purifying surface water and ground water; provide essential breeding, rearing, feeding, nesting, and wintering habitat for many species of resident and migratory fish and wildlife, including endangered species and commercially important food fish; maintain ground water, particularly during periods of drought, and surface water through the gradual release of stored flood flows; and provide important outdoor laboratories for education and research.

The legislature also finds that a substantial amount of wetlands have been created by agricultural irrigation, that these wetlands provide a valuable contribution to the state's wetland resources, and that they have unique characteristics that require special consideration.

The legislature also finds that many of Washington's wetlands have been destroyed or seriously degraded by draining, dredging, filling, excavating, building, polluting, and other acts inconsistent with the natural uses of these areas; that wetlands are often unprotected by existing federal, state, and local laws; and that the state's remaining wetlands are in jeopardy of being lost or damaged by such acts, causing threats to public safety and welfare.

The legislature also finds that current approaches to identifying, conserving, and managing wetland resources in the state are inconsistent, uncertain, and uncoordinated. Many state agencies and municipalities define or 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.

Therefore, 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 shall be a goal of the state to achieve no overall net loss of Washington's remaining wetlands base, as defined by acreage and function, and to restore and create wetlands, where feasible, in order to increase the quantity and quality of the wetlands resource base.

It is also the public policy and intent of the state to:

(1) Establish a state-wide wetland protection and management program on a cooperative basis between the state and local governments, with local governments developing and implementing local programs in a manner consistent with state standards;

(2) Develop and maintain a state-wide inventory of wetlands and inventory maps that:

(a) Classify wetlands according to type and estimated acreage;

(b) Are usable and available to local governments for development and implementation of local wetland management programs;

(3) Adopt and implement a state mitigation policy for wetlands that meets the goal and intent of this chapter and that provides adequate and consistent protection for the state's wetlands and predictability for landowners and local decision-makers;

(4) Encourage, where feasible, the creation and restoration of wetlands;

(5) Coordinate programs for the management of wetlands created by irrigated agriculture with other state programs and policies that promote an increase in the efficient use of water by irrigated agriculture;

(6) Support, in perpetuity, the preservation of the state's most important wetlands; and

(7) Minimize regulatory duplication at both the state and local levels.

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

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

(2) "Director" means the director 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) "Mitigation" has the same meaning as that adopted in WAC 197-11-768 under the state environmental policy act, chapter 43.21C RCW.

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

(6) "Program" means a wetland management program.

(7) "Regulated activity" is any activity occurring or proposed in a wetland or wetland buffer zone that is regulated by the department or local governments under the authority of this chapter.

(8) "Regulated wetlands," for purposes of regulation under this chapter, shall be those lands defined as wetlands under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and wetland buffer zones. "Regulated wetlands" shall not include artificial wetlands created as a result of irrigated agricultural practices.

(9) "Wetlands," for inventories and other nonregulatory purposes, shall mean those lands defined by the United States fish and wildlife service for the national wetlands inventory.

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

(11) "Wetland management program" means any program adopted by a local government to protect and manage 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.

(12) "Wetland management standards" mean those minimum standards adopted as rules by the department for wetland management programs pursuant to this chapter.

NEW SECTION. Sec. 3. COOPERATIVE WETLAND MANAGEMENT PROGRAM. This chapter establishes a cooperative program of wetland management between local governments and the state. In carrying out the state's responsibilities under this chapter, the department shall coordinate with other government agencies with an interest or jurisdiction in the regulation and management of wetlands.

NEW SECTION. Sec. 4. DUTIES AND RESPONSIBILITIES OF LOCAL GOVERNMENTS. Local governments shall be responsible for: (1) Classifying wetlands within their jurisdiction as to size, function, and value; and (2) developing, implementing, administering, and enforcing wetland management programs according to the requirements of this chapter and rules adopted by the department under this chapter.

NEW SECTION. Sec. 5. DUTIES AND RESPONSIBILITIES OF THE DEPARTMENT. The department shall:

(1) Develop and adopt, by rule, minimum wetland management standards, which shall include criteria for classifying wetlands as to size, function, and value;

(2) Provide guidance and assistance to local governments in development, amendment, and administration of wetland management programs, including a model wetland management program;

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

(4) Pursue funding and provide financial assistance to the fullest extent possible, and, at a minimum, reimburse local governments their costs for establishing wetland management programs under this chapter;

(5) Approve and periodically review individual programs to ensure their compliance with wetland management standards;

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

(7) 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.

NEW SECTION. Sec. 6. DEVELOPMENT OF WETLAND MANAGEMENT STANDARDS. The department shall adopt minimum standards for wetland management programs by rule on or before August 1, 1990. These standards shall use the classification system in section 10 of this act and shall provide for wetland buffer zones. Standards adopted by the department under this chapter shall not apply to wetlands subject to the 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. 7. ELEMENTS OF A WETLAND MANAGEMENT PROGRAM. At a minimum, a program sufficient to meet the requirements of this chapter will include:

(1) A wetlands inventory that includes a classification of each wetland;

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

(3) New or amended provisions, where necessary, of local plans and ordinances, including:

(a) A shoreline master program;

(b) Zoning, subdivision, and building ordinances that may or will be applicable to regulated wetlands; and

(4) A requirement that locally approved projects and activities in wetlands and wetland buffer zones be consistent with the wetland management program.

No program shall be required under this section for wetlands currently regulated under chapter 90.58 RCW, provided that local governments may amend their shoreline master programs to achieve consistent treatment for all wetlands within their jurisdiction.

NEW SECTION. Sec. 8. ADOPTION OF WETLAND MANAGEMENT PROGRAMS. (1) Every local government shall prepare a proposed program and submit it to the department within eighteen months after the effective date of the wetland management standards. Before submission of a proposed program, a local government shall follow the provisions of chapter 34.05 RCW and hold at least one public hearing on the proposal.

(2) Within ninety days after receipt of a proposed program, 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.

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

(4) Program amendments required by the department or proposed by local governments shall be acted upon by the department in the same manner as the original program.

NEW SECTION. Sec. 9. REGULATED WETLAND ACTIVITIES TO COMPLY WITH MANAGEMENT STANDARDS. From the date of adoption of wetland management standards by the department, all regulated activities 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. Wetland management programs shall be effective only after approval by the department and subsequent adoption by local government. Upon adoption, regulated activities shall comply with applicable wetland management programs and any other requirements under this chapter.

NEW SECTION. Sec. 10. WETLAND CLASSIFICATION AND RATING. (1) The department shall develop a system for the classification and rating of wetlands according to size; functional and resource value; degree of sensitivity to disturbance; rarity; unique qualities; ability to mitigate for destruction or degradation; and other relevant criteria developed by the department.

(2) The classification system shall generally distinguish between wetlands of high, medium, and low resource value. The system shall be used to develop wetland management standards, determine appropriate mitigation policies, determine wetland buffer zones, and establish priorities for regulation and acquisition. Mitigation policies developed in accordance with section 11 of this act shall recognize the value and classification of wetlands and shall implement the following priorities: For regulated wetlands classified as high quality, mitigation shall emphasize preservation and/or acquisition; for regulated wetlands classified as medium quality, mitigation shall emphasize restoration and/or enhancement, particularly of degraded wetlands; and for regulated wetlands classified as low quality, mitigation shall compensate for any permitted regulated activities consistent with the overall long-term goal of increasing the quantity and quality of wetland resources and may include creation of new wetlands.

(3) The department shall provide written guidelines, technical assistance, and training programs to assist local governments in evaluating wetlands under this classification system.

NEW SECTION. Sec. 11. MITIGATION. Mitigation plans shall be required in connection with applications for proposals involving regulated wetland activities. As defined in this chapter, approaches to mitigating wetland impacts shall 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, and according to the mitigation priorities established in section 10 of this act. State and local agencies shall have the flexibility to select mitigation options that best protect the most valuable functions of regulated 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, but shall have as their preferred priority in all cases the preservation and protection of wetlands.

(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. 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, or (b) 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 area of the replacement wetland.

(5) Two or more applicants may also propose joint and/or coordinated proposals for mitigation projects on adjacent sites.

(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. 12. REGULATED ACTIVITIES. The following activities, unless exempted by this chapter, shall be regulated when they occur in regulated wetlands or wetland buffer zones:

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

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

(3) The draining, flooding, or disturbing of the water level or water table;

(4) The driving of pilings;

(5) The placing of obstructions;

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

(7) The destruction or alteration of wetland vegetation through clearing, harvesting, shading, or planting of vegetation.

"Regulated" shall not mean "prohibited," except as determined in the management plans.

NEW SECTION. Sec. 13. EXEMPT ACTIVITIES. The following activities are exempted from regulation under this chapter:

(1) All normal or necessary farming, silviculture, or ranching activities conducted on farm and agricultural lands as defined in RCW 84.34.020(2);

(2) All forest practices, as defined in chapter 76.09 RCW;

(3) Normal maintenance, repair, or operation of the following, to the extent that any adverse effect on the wetland or wetland buffer zone be otherwise avoided:

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

(b) Public streets, highways, or roads, including improvements, within the right of way;

(4) Construction of new dikes and levees, and normal maintenance and repair of existing dikes and levees.

These exemptions shall not apply to any conversion of a wetland to a use to which it was not previously subjected.

NEW SECTION. Sec. 14. ENFORCEMENT. (1) The attorney general, or the attorney for local government, shall bring such injunctive, declaratory, or other actions as are necessary to ensure compliance with this chapter and its rules, and wetland management programs adopted pursuant to this chapter.

(2) Any person who fails to comply with this chapter and its rules, or any wetland management program adopted pursuant to 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 noncompliance 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. Penalties jointly imposed by the department and local government shall be divided equally between the department and the local government.

(4) Any penalty imposed under this section by the department, or jointly with local government, shall be subject to review by the pollution control hearings board. Any penalty imposed under this section by local government shall be subject to review by the local government legislative authority.

NEW SECTION. Sec. 15. 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. 16. OTHER STATUTORY AUTHORITY. This chapter shall not be construed to affect any authority granted by law to any agency of federal, state, tribal, or local government to regulate areas or activities that include wetlands or activities regulated under this chapter.

NEW SECTION. Sec. 17. SHORT TITLE. This chapter shall be known and cited as the wetland management act of 1989.

NEW SECTION. Sec. 18. 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.

NEW SECTION. Sec. 19. APPROPRIATION. (1) The sum of one million dollars, or as much thereof as may be necessary, is appropriated from the centennial clean water fund to the department of ecology for the purposes of this act.

(2) The sum of four hundred thousand dollars, or as much thereof as may be necessary, is appropriated from the general fund to the department of ecology for the purposes of this act.

Sec. 20. 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 18 of this act).

Sec. 21. 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 18 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. 22. 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 18 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. 23. CAPTIONS. Captions as used in sections 1 through 19 of this act do not constitute any part of the law.

NEW SECTION. Sec. 24. Sections 1 through 18 of this act shall constitute a new chapter in Title 90 RCW.