AN ACT Relating to anadromous fishery resources; amending RCW 75.20.090; adding new sections to chapter 75.20 RCW; adding new sections to chapter 77.12 RCW; adding a new section to chapter 43.10 RCW; creating new sections; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature hereby declares an emergency due to the decimated condition of anadromous fishery resources in certain rivers with hydroelectric dams. Mitigation agreements are not being fulfilled, mitigation hatchery facilities are operating inefficiently, and fishways and screens have not been installed or are inefficient, all of which have resulted in the destruction or reduction of anadromous fish runs. The public is not well served by the loss of these precious fish resources, nor is it well served by the state agencies, federal agencies, and public and private hydroelectric dam operators who have not accepted their responsibility for the decimation of the anadromous fish runs.

NEW SECTION. Sec. 2. The department of fisheries shall fully enforce the mitigation agreements that have been signed with each hydroelectric dam operator in the state. The office of the attorney general shall be immediately informed of any unfulfilled mitigation agreements by the department of fisheries and shall commence legal action against every hydroelectric dam operator not in compliance with mitigation agreements.

NEW SECTION. Sec. 3. The department of fisheries shall fully enforce RCW 75.20.040, 75.20.050, 75.20.060, 75.20.061, 75.20.090, 75.20.110, and 75.20.310. The office of the attorney general shall be immediately informed of any violation of these laws by the department of fisheries and shall commence legal action against every hydroelectric dam operator not in compliance with these laws. Any individual may bring legal action in the superior court of Thurston county against the director for failure to enforce this section.

NEW SECTION. Sec. 4. The department of fisheries, in conjunction with the department of wildlife, shall establish minimum performance levels for fish mitigation for each and every hydroelectric project. The departments shall establish a progress time schedule for each run of fish for each and every hydroelectric project. The office of the attorney general shall be immediately informed of any hydroelectric project that is not meeting minimum performance levels or time schedules on fish mitigation and shall commence legal action against every hydroelectric dam operator not in compliance with minimum performance or time schedule standards.

NEW SECTION. Sec. 5. A new section is added to chapter 43.10 RCW to read as follows:

The attorney general's office shall prepare a yearly report to the legislature on the summary of litigation against hydroelectric dam operators for unfulfilled anadromous fish mitigation. The report shall be due December 31 of each year and shall be submitted to the house of representatives and senate ways and means committees, the house of representatives natural resources committee, and the senate environment and natural resources committee.

NEW SECTION. Sec. 6. The state policy for anadromous fish mitigation of new federal licensed hydroelectric projects is to seek complete mitigation for a project in the same locations, with the same species, and species abundance as in predam conditions. The department of fisheries and department of wildlife shall implement this policy for every new hydroelectric project that is federally licensed and for every project relicensing.

NEW SECTION. Sec. 7. The department of wildlife shall fully enforce the mitigation agreements that have been signed with each hydroelectric dam operator in the state. The office of the attorney general shall be immediately informed of any unfulfilled mitigation agreements by the department of wildlife and shall commence legal action against every hydroelectric dam operator not in compliance with mitigation agreements.

NEW SECTION. Sec. 8. The department of wildlife shall fully enforce RCW 77.12.320, 77.12.425, 77.16.210, and 77.16.220. The office of the attorney general shall be immediately informed of any violation of these laws by the department of wildlife and shall commence legal action against every hydroelectric dam operator not in compliance with these laws. Any individual may bring legal action in the superior court of the state for Thurston county against the director and the wildlife commission for failure to enforce this section.

NEW SECTION. Sec. 9. The department of wildlife, in conjunction with the department of fisheries, shall establish minimum performance levels for fish mitigation for each and every hydroelectric project. The departments shall establish a progress time schedule for each run of fish for each and every hydroelectric project. The office of the attorney general shall be immediately informed of any hydroelectric project that is not meeting minimum performance levels or time schedules on fish mitigation and shall commence legal action against every hydroelectric dam operator not in compliance with minimum performance or time schedule standards.

Sec. 10. Section 75.20.090, chapter 12, Laws of 1955 as amended by section 74, chapter 46, Laws of 1983 1st ex. sess. and RCW 75.20.090 are each amended to read as follows:

Prior to a determination that a fishway is impractical for a dam or other hydraulic project, the director shall request an advisory ruling from the salmon advisory council and shall conduct at least three public hearings in the geographic area where the project is proposed in cooperation with the county commissioners of the counties in which the project is located. Before a person commences construction on a dam or other hydraulic project for which the director determines that a fishway is impractical, the person shall at the option of the director:

(1) Convey to the state a fish cultural facility on a site satisfactory to the director and constructed according to plans and specifications approved by the director, and enter into an agreement with the director secured by sufficient bond, to furnish water and electricity, without expense, and funds necessary to operate and maintain the facilities; or

(2) Enter into an agreement with the director secured by sufficient bond to make payments to the state as the director determines are necessary to expand, maintain, and operate additional facilities at existing hatcheries within a reasonable distance of the dam or other hydraulic work to compensate for the damages caused by the dam or other hydraulic work.

(3) A decision of the director under this section is subject to review in the superior court of the state for Thurston county. Each day that a person carries on construction work or operates a dam or hydraulic project without complying with this section is a separate offense.

NEW SECTION. Sec. 11. Sections 2 through 4 of this act are each added to chapter 75.20 RCW.

NEW SECTION. Sec. 12. Sections 7 through 9 of this act are each added to chapter 77.12 RCW.

NEW SECTION. Sec. 13. This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately.

NEW SECTION. Sec. 14. 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.