AN ACT Relating to geoducks; amending RCW 75.10.140, 79.96.010, 79.96.020, 79.96.030, 79.96.050, 79.96.070, 75.24.100, 75.28.287, and 75.10.140; adding a new chapter to Title 75 RCW; repealing RCW 79.96.080 and 79.96.085; and prescribing penalties.

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

NEW SECTION. Sec. 1. In leasing tracts of land for the cultivation or harvest of geoducks, the department of fisheries may not lease adjoining tracts to different companies.

NEW SECTION. Sec. 2. There is created the geoduck advisory committee to advise the department of fisheries on all aspects of the geoduck program. All meetings of the committee shall be open to the public. The committee shall be composed of twelve members and shall include: Two geoduck divers, two boat operators, two geoduck lessors, two members of the general public, one geoduck processor, one representative from the department of ecology, and one representative from the department of social and health services. All members of the committee shall be appointed by the governor for two year terms. Members shall receive subsistence and travel expenses reimbursement under RCW 43.03.050 and 43.03.060.

NEW SECTION. Sec. 3. (1) The geoduck advisory committee shall meet at least monthly and shall review all aspects of the geoduck program, including but not limited to: (a) The accuracy of geoduck surveys; (b) all rules adopted by the department relating to the geoduck program; (c) the marking of geoduck tracts; (d) lease and bid procedures; (e) enforcement, budget, personnel, and procedures; (f) market practices; (g) gear requirements; (h) funding for laboratory facilities and for research; and (i) postharvest assessments of the effects of geoduck harvesting on the resource and on the environment.

(2) The geoduck advisory committee shall develop tract enforcement standards and tract safety standards and submit such standards to the legislature for review not later than January 1, 1990.

(3) The committee shall submit an annual report to the legislature not later than January 1 of each year.

NEW SECTION. Sec. 4. Geoduck harvesting and the landing of geoducks may only be conducted during daylight hours.

NEW SECTION. Sec. 5. (1) All geoduck catches must be checked by a department of fisheries employee designated to perform such checks.

(2) Fish tickets turned in with a geoduck catch must be supervised by department of fisheries employees and shall be filled out completely.

NEW SECTION. Sec. 6. (1) All geoduck divers must be trained in commercial scuba diving. The department of fisheries shall set standards for training by rule based upon recommendation of the geoduck advisory committee.

(2) Any person convicted of the theft of geoducks for commercial purposes shall be responsible for treble damages to the state and shall be guilty of a class C felony.

NEW SECTION. Sec. 7. The department of fisheries shall adopt rules under chapter 34.05 RCW to implement the purposes of this chapter.

NEW SECTION. Sec. 8. Every wholesale shellfish dealer in the state of Washington shall have substantial proof of the location of the lease from which geoducks were taken.

Sec. 9. Section 7, chapter 141, Laws of 1979 ex. sess. as last amended by section 4, chapter 80, Laws of 1984 and RCW 75.10.140 are each amended to read as follows:

(1) In addition to the penalties prescribed in RCW 75.10.110 and 75.10.120, the director may revoke geoduck diver licenses or geoduck tract licenses held by a person if:

(a) Within a five-year period that person is convicted or has an unvacated bail forfeiture for two or more violations of this title or rules of the director relating to geoduck licensing or harvesting; or

(b) The department of natural resources suspended or canceled the lease or harvesting agreement under RCW 79.96.080.

(2) When a geoduck tract licensee permits a person to harvest geoducks on that tract, off of the tract, or at any other location in the waters of Puget Sound, each violation by that person of this title or rules of the director relating to geoduck licensing or harvesting resulting in: (a) Conviction or unvacated forfeiture of bail; or (b) suspension or cancellation of the lease or harvesting agreement by the department of natural resources under RCW 79.96.080; shall be imputed to the tract licensee for the purpose of computing the number of violations by the tract licensee under subsection (1) of this section.

(3) Except as provided in subsection (4) of this section, the director shall not issue a geoduck diver license or geoduck tract license to a person who has had a license revoked. This prohibition is effective for one year after the revocation.

(4) Appeals of revocations under this section may be taken under the judicial review provisions of chapter ((~~34.04~~)) 34.05 RCW. If the license revocation is determined to be invalid, the director shall reissue the license to that person.

NEW SECTION. Sec. 10. (1) All powers, duties, and functions relating to geoduck clams and their cultivation, harvesting, leasing of lands, and regulation are given to the department of fisheries.

(2) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of natural resources relating to geoduck clams and land leases, cultivation, harvesting, or regulation shall be delivered to the custody of the department of fisheries.

NEW SECTION. Sec. 11. All rules and all pending business before the department of natural resources regarding the regulation of geoducks and geoduck land leases shall be continued and acted upon by the department of fisheries. All contracts and obligations shall remain in full force and shall be performed by the department of fisheries.

Sec. 12. Section 134, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.96.010 are each amended to read as follows:

The beds of all navigable tidal waters in the state lying below extreme low tide, except as prohibited by section 1, Article XV, of the Washington state Constitution shall be subject to lease for the purposes of planting and cultivating oyster beds, or for the purpose of cultivating clams or other edible shellfish, or for other aquaculture use, for periods not to exceed ten years.

Where the lands are used for the cultivation and harvesting of oysters, the parcels leased shall not exceed forty acres.

Where the lands are used for the cultivation and harvesting of clams or other aquaculture use except for the cultivation or harvest of geoduck clams, the department of natural resources may, in its discretion, grant leases for larger parcels. Where the lands are used for the cultivation and harvesting of geoduck clams, the director of fisheries may grant leases for larger parcels.

Nothing in this section shall prevent any person from leasing more than one parcel, as offered by the department or the director.

Sec. 13. Section 135, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.96.020 are each amended to read as follows:

(1) Any person desiring to lease tidelands or beds of navigable waters for the purpose of planting and cultivating oyster beds, or for the purpose of cultivating clams and other edible shellfish, shall file with the department of natural resources, on a proper form, an application in writing signed by the applicant and accompanied by a map of the lands desired to be leased, describing the lands by metes and bounds tied to at least two United States government corners, and by such reference to local geography as shall suffice to convey a knowledge of the location of the lands with reasonable accuracy to persons acquainted with the vicinity, and accompanied by a deposit of ten dollars which deposit shall be returned to the applicant in case a lease is not granted.

(2) A person desiring to lease tidelands or beds for the purpose of cultivating geoduck clams shall file an application containing the same information and a ten-dollar deposit with the department of fisheries.

Sec. 14. Section 136, chapter 31, Laws of 1982 1st ex. sess. as amended by section 1, chapter 374, Laws of 1987 and RCW 79.96.030 are each amended to read as follows:

(1) The department of natural resources, upon the receipt of an application for a lease for the purpose of planting and cultivating oyster beds or for the purpose of cultivating clams or other edible shellfish as provided in RCW 79.96.020(1), shall notify the director of fisheries of the filing of the application describing the tidelands or beds of navigable waters applied for. The director of fisheries shall cause an inspection of the lands applied for to be made and shall make a full report to the department of natural resources of his findings as to whether it is necessary, in order to protect existing natural oyster beds, and to secure adequate seeding thereof, to retain the lands described in the application for lease or any part thereof, and in the event the director deems it advisable to retain the lands or any part thereof for the protection of existing natural oyster beds or to guarantee the continuance of an adequate seed stock for existing natural oyster beds, the same shall not be subject to lease. However, if the director determines that the lands applied for or any part thereof may be leased, he shall so notify the department of natural resources and the director shall cause an examination of the lands to be made to determine the presence, if any, of natural oysters, clams, or other edible shellfish on said lands, and to fix the rental value of the lands for use for oyster, clam, or other edible shellfish cultivation. In his report to the department, the director shall recommend a minimum rental for said lands and an estimation of the value of the oysters, clams, or other edible shellfish, if any, then present on the lands applied for. The lands approved by the director for lease may then be leased to the applicant for a period of not less than five years nor more than ten years at a rental not less than the minimum rental recommended by the director of fisheries. In addition, before entering upon possession of the land, the applicant shall pay the value of the oysters, clams, or other edible shellfish, if any, then present on the land as determined by the director, plus the expense incurred by the director in investigating the quantity of oysters, clams, or other edible shellfish, present on the land applied for.

(2) When issuing new leases or reissuing existing leases the department shall not permit the commercial harvest of subtidal hardshell clams by means of hydraulic escalating when the upland within five hundred feet of any lease tract is zoned for residential development.

(3) When the director of fisheries receives an application for a lease for the purpose of cultivating or harvesting geoduck clams, the director shall cause an inspection of the lands to be made and shall determine whether it is advisable to retain the lands for the protection of natural geoduck stock. If the director determines that is is advisable to retain the lands, the lands shall not be leased.

Sec. 15. Section 138, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.96.050 are each amended to read as follows:

The department of natural resources may, upon the filing of an application for a renewal lease, or the director of fisheries may, upon the filing of an application for a renewal lease for cultivating or harvesting geoduck clams, cause the tidelands or beds of navigable waters to be inspected, and if he ((~~deem[s]~~)) deems it in the best interests of the state to re-lease said lands, he shall issue to the applicant a renewal lease for such further period not exceeding ten years and under such terms and conditions as may be determined by the department: PROVIDED, That in the case of an application for a renewal lease for other than the cultivation or harvest of geoduck clams it shall not be necessary for the lands to be inspected and reported upon by the director of fisheries.

Sec. 16. Section 140, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.96.070 are each amended to read as follows:

If from any cause any lands leased for the purpose of planting and cultivating oysters, clams, or other edible shellfish shall become unfit and valueless for any such purposes, the lessee or his assigns, upon certifying such fact under oath to the department of natural resources or to the director of fisheries in the case of a lease involving the cultivation or harvest of geoduck clams, together with the fact that he has abandoned such land, shall be entitled to make application for other lands for such purposes.

NEW SECTION. Sec. 17. (1) The department of fisheries may enter into leases or harvesting agreements for the harvesting of geoducks. The department of fisheries may place terms and conditions in the leases or harvesting agreements as the department deems necessary. The department may enforce the provisions of any lease or harvesting agreement by suspending or canceling the lease or harvesting agreement or through any other means contained in the lease or harvesting agreement. The department may cancel any lease or harvesting agreement when a person has been found to have committed a second violation of the geoduck licensing or harvesting provisions under Title 75 RCW. Any lessee may terminate a lease entered into pursuant to this subsection if actions of a governmental agency, beyond the control of the lessee, its agents, or its employees, prohibit harvesting, for a period exceeding thirty days, during the term of the harvesting agreement. Upon termination of the lease, the lessee shall be reimbursed by the lessor for the cost paid on the lease less the value of the harvest already accomplished by the lessee on the leasehold.

(2) After May 8, 1979, all leases or harvesting agreements under this title for the purpose of harvesting geoduck clams shall require the lessee and the lessee's agent or representatives to comply with all applicable commercial diving safety standards and regulations promulgated and implemented by the federal occupational safety and health administration established under the federal occupational safety and health act of 1970 as such law exists on July 1, 1983 (84 Stat. 1590 et seq.; 29 U.S.C. Sec. 651 et seq.): PROVIDED, That for the purposes of this section and RCW 75.24.100 as now or hereafter amended, all persons who dive for geoducks are deemed to be employees as defined by the federal occupational safety and health act. All leases shall provide that failure to comply with these standards is cause for suspension or cancellation of the lease: PROVIDED FURTHER, That for the purposes of this subsection if the lessee is the holder of a tract license and contracts with another entity for the harvesting of geoducks, the lease shall not be suspended or canceled if the lessee terminates its business relationship with such entity until compliance with the subsection is secured.

NEW SECTION. Sec. 18. The department of fisheries shall designate the areas of aquatic lands owned by the state which are available for geoduck harvesting by licensed geoduck harvesters in accordance with RCW 79.01.124.

Sec. 19. Section 2, chapter 80, Laws of 1984 and RCW 75.24.100 are each amended to read as follows:

(1) The director may issue licenses, with the approval of the commissioner of public lands, for the commercial harvesting of geoduck clams from specific tracts of beds of navigable waters for which harvest rights have been granted ((~~by the department of natural resources~~)). The director shall not authorize commercial harvesting on bottoms which are shallower than eighteen feet below mean lower low water (0.0. ft.), or which lie in an area bounded by the line of ordinary high tide (mean high tide) and a line two hundred yards seaward from and parallel to the line of ordinary high tide. If the director determines that the number of units of gear is sufficient to harvest the known available crop and that additional units of gear might prove damaging to the resource or its habitat, the director may suspend the issuance of additional licenses until the director determines there is need for additional units of gear to achieve a sustained harvest.

(2) Commercial geoduck harvesting shall be done with a hand-held, manually operated water jet or suction device guided and controlled from under water by a diver. Periodically, the director shall determine the effect of each type or unit of gear upon the geoduck population or the substrate they inhabit. The director may require modification of the gear or stop its use if it is being operated in a wasteful or destructive manner or if its operation may cause permanent damage to the bottom or adjacent shellfish populations.

(3) A person, including the person's agents or representatives, who holds a license under subsection (1) of this section shall comply with all applicable commercial diving safety regulations adopted by the federal occupational safety and health administration established under the federal occupational safety and health act of 1970 as such law exists on May 8, 1979 (84 Stat. 1590 et seq.; 29 U.S.C. Sec. 651 et seq.). A violation of these regulations is a violation of this subsection. For the purposes of this section, persons who dive for geoducks are "employees" as defined by the federal occupational safety and health act. A violation of this subsection is grounds for suspension or revocation of the license following a hearing as provided for in chapter ((~~34.04~~)) 34.05 RCW. A license shall not be suspended or revoked if the violation has been corrected within ten days of receipt of written notice of the violation. If there is a substantial probability that a violation of the commercial diving standards could result in death or serious physical harm to a person engaged in harvesting geoduck clams, the department shall suspend the license immediately until the violation has been corrected. If the licensee is the holder of a tract license and contracts with another person for the harvesting of geoducks, the license shall not be suspended or canceled if the licensee terminates its business relationship with such entity until compliance with this subsection is secured.

Sec. 20. Section 4, chapter 253, Laws of 1969 ex. sess. as last amended by section 130, chapter 46, Laws of 1983 1st ex. sess. and RCW 75.28.287 are each amended to read as follows:

(1) A geoduck tract license is required for the commercial harvest of geoducks from each subtidal tract for which harvest rights have been granted by the department of ((~~natural resources~~)) fisheries. The annual license fee is one hundred dollars for residents and nonresidents.

(2) Every diver engaged in the commercial harvest of geoduck or other clams shall obtain a nontransferable geoduck diver license. The annual license fee is fifty dollars for residents and nonresidents.

Sec. 21. Section 7, chapter 141, Laws of 1979 ex. sess. as last amended by section 4, chapter 80, Laws of 1984 and RCW 75.10.140 are each amended to read as follows:

(1) In addition to the penalties prescribed in RCW 75.10.110 and 75.10.120, the director may revoke or refuse to renew geoduck diver licenses or geoduck tract licenses held by a person if:

(b) The director or the department of natural resources suspended or canceled the lease or harvesting agreement under RCW 79.96.080.

(2) ((~~When~~)) Any employee of a geoduck tract licensee ((~~permits a~~)) who commits a violation of this title or rules of the director relating to geoduck harvesting resulting in a conviction or unvacated forfeiture of bail, or any person permitted by the licensee to harvest geoducks on ((~~that~~)) the licensee's tract, ((~~each~~)) who commits a violation ((~~by that person~~)) of this title or rules of the director relating to geoduck licensing or harvesting resulting in: (a) Conviction or unvacated forfeiture of bail; or (b) suspension or cancellation of the lease or harvesting agreement by the director or the department of natural resources under RCW 79.96.080; shall ((be)) have such conviction, bail, forfeiture, suspension, or cancellation imputed to the tract licensee for the purpose of computing the number of violations by the tract licensee under subsection (1) of this section.

(4) Appeals of revocations or refusals to renew under this section may be taken under the judicial review provisions of chapter ((~~34.04~~)) 34.05 RCW. If the license revocation or refusal to renew is determined to be invalid, the director shall reissue the license to that person.

NEW SECTION. Sec. 22. Sections 1 through 8, 10, 11, 17, and 18 of this act shall constitute a new chapter in Title 75 RCW.

NEW SECTION. Sec. 23. The following acts or parts of acts are each repealed:

(1) Section 141, chapter 21, Laws of 1982 1st ex. sess. and RCW 79.96.080; and

(2) Section 5, chapter 141, Laws of 1979 ex. sess., section 129, chapter 46, Laws of 1983 1st ex. sess. and RCW 79.96.085.