AN ACT Relating to wetlands; adding a new chapter to Title 90 RCW; creating a new section; and prescribing penalties.

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 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.

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 statewide 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 which meets the goal and intent of this chapter and which provides adequate and consistent protection for the state's wetlands and predictability for landowners and local decision-makers;

(4) Encourage sensitive area planning on a watershed basis to avoid or minimize damage to wetlands;

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

(6) Support, in perpetuity, the preservation of the state's most important wetlands through a wetlands preservation program; 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) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state, local, or other governmental unit.

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

(6) "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.

(7) "Regulated wetlands" are those wetlands or wetland buffer zones designated by rules adopted by the department under this chapter.

(8) "Wetlands" means those areas defined as wetlands by the United States fish and wildlife service; these are defined 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 three attributes:

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

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

(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.

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

(10) "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.

(11) "Wetland management standards" mean those 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 developing, implementing, and administering 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, wetland management standards;

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

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

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

(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 standards for wetland management programs by rule on or before August 1, 1990. These standards may provide for differences in wetland resource values, functions, and size. Prior to adopting these standards, the department shall consult with affected local jurisdictions and 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;

(2) New or amended provisions, if necessary, of local plans and ordinances, including:

(a) A comprehensive plan;

(b) A shoreline master program;

(d) Provisions relating to enforcement.

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

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 twelve months after the effective date of the wetland management standards. This period may be extended up to six months where reasonable progress is being made towards development of a program. Before submission of a proposed program, a local government shall hold at least one public hearing on the proposal.

(2) Upon 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 shall be submitted and acted upon by the department in the same manner as the original program.

NEW SECTION. Sec. 9. PROJECT APPROVAL UPON ADOPTION OF WETLAND 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 be consistent with these wetland management standards. Following approval by the department and adoption by local government, regulated activities must be consistent with applicable wetland management programs.

NEW SECTION. Sec. 10. REGULATED WETLANDS AND WETLAND BUFFER ZONES. Wetlands and wetland buffer zones subject to regulation under this chapter shall be designated by the department by rule. Such designations may recognize specific characteristics of wetlands such as size, function, and resource value.

NEW SECTION. Sec. 11. 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, demolition, 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.

NEW SECTION. Sec. 12. EXEMPT ACTIVITIES. The following activities are exempted from regulation under this chapter:

(1) Ongoing and existing farming, silviculture, and ranching 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 or stock ponds or irrigation ditches, or the maintenance of drainage ditches; construction or maintenance of 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;

(2) Harvesting of forest products in accordance with the forest practices act, chapter 76.09 RCW;

(3) Minor maintenance, repair, or operation of structures in existence on the effective date of this act;

(4) Minor maintenance, repair, or improvement of public streets, highways, or roads, within the right of way and in such a manner as to assure that any adverse effect on the wetland or wetland buffer zone will be otherwise avoided;

(5) Construction, maintenance, repair, or operation of gas, oil, or sewage pipelines;

(6) Minor maintenance, repair, or operation of electric transmission and distribution power lines; and

(7) Maintenance, repair, or operation, including reconstruction of recently damaged parts, of serviceable dikes and levees in existence on the effective date of this chapter.

These exemptions shall not apply to any discharge of dredged or fill material that results in the conversion of a wetland to a use to which it was not previously subjected, or where the flow, water quality, or circulation patterns of the waters may be impaired, or where the reach of the waters is reduced.

NEW SECTION. Sec. 13. ENFORCEMENT. (1) The attorney general, or the attorney for the local government, shall bring such injunctive, declaratory, or other actions as are necessary to ensure compliance with this chapter.

(2) Any person who fails to comply with 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.

(4) Any penalty imposed pursuant to this section by the department shall be subject to review by the pollution control hearings board. Any penalty imposed pursuant to this section by 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 pollution control hearings board.

NEW SECTION. Sec. 14. ADDITIONAL AUTHORITY GRANTED. In addition to any other powers granted under this chapter, the department and local governments may:

(1) Acquire property and easements of lands, wetlands, and transition areas that are regulated under this chapter by purchase, lease, or gift, either alone or in concert with other governmental entities, when necessary to achieve implementation of any wetland management or preservation program adopted under this chapter;

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

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

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

(5) Contract for professional or technical services; and

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

NEW SECTION. Sec. 15. 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. 16. SHORT TITLE. This chapter shall be known and cited as the wetland management act of 1989.

NEW SECTION. Sec. 17. 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. 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. Captions as used in sections 1 through 18 of this act do not constitute any part of the law.

NEW SECTION. Sec. 20. Sections 1 through 18 of this act shall constitute a new chapter in Title 90 RCW.