Z-1543               _______________________________________________


                                                   SENATE BILL NO. 6799



State of Washington                               51st Legislature                              1990 Regular Session


By Senators Metcalf, Kreidler, Barr, Owen, Rinehart, Anderson, Lee, Patrick, Sutherland and Talmadge; by request of Governor



Read first time 1/25/90 and referred to Committee on  Environment & Natural Resources.



AN ACT Relating to wetlands protection and management; adding a new chapter to Title 90 RCW; adding a new section to chapter 76.09 RCW; and prescribing penalties.




          NEW SECTION.  Sec. 1.  LEGISLATIVE FINDINGS.            (1) The legislature finds that wetlands serve many important environmental and economic purposes.  These include flood conveyance, barriers to waves and erosion, flood storage, sediment control, fish and shellfish production, habitat for waterfowl and other wildlife, habitat for rare, threatened, and endangered species, enhancement of biological diversity, recreation, water supply, food production, timber production, historic and archaeological values, education and research, open space and aesthetic values, and water quality protection.

          (2) The legislature further finds that as much as fifty percent of the state's original wetlands have been converted to other uses, with more than ninety percent of the original saltwater wetlands in some Puget Sound urban estuaries having been lost.  In urban areas, freshwater wetlands losses exceed nine hundred acres per year, and in some agricultural areas, necessary water efficiency activities may adversely impact wetlands incidentally created and maintained by irrigated agriculture.

          (3) Property containing wetlands has historically been considered valuable for uses which require wetlands alteration or conversion.  For example, some facilities associated with ports, marinas, and fish hatcheries have needed to be adjacent to water; in some metropolitan areas, the only large, flat, open, centrally located parcels of available land contained wetlands.  These parcels became prime sites for shopping centers, industrial parks, airports, parks, highway and utility crossings, as well as smaller scale development activities; wetlands have overlain important oil, gas, and other mineral deposits or supported valuable stands of timber; and in agricultural areas, wetlands provided the only land that individual farmers could readily make use of to expand their crop acreage.

          (4) Activities such as filling, draining, excavating, diverting water, clearing, flooding, diverting or withholding sediment, shading, intentional burning, conducting activities in adjacent areas, changing nutrient levels, introducing toxins, grazing, and disruption of natural populations alter wetlands functions.  These activities have caused public funds to be spent for fish hatcheries, storm water retention facilities, flood control structures, repair of flood damage, and to clean contaminated public waters.

          (5) Some economic uses of privately owned wetlands are compatible with maintenance of the wetlands ecosystem.  Appropriate silvicultural operations can be carried out without damaging the ecosystem.  Agricultural management practices, in accordance with best management practices, and the production of native wetlands crop species, can generate income without significant loss of wetlands functions.

          (6) Costs of wetlands degradation and benefits resulting from wetlands protection tend to accrue more to the general public than to the owners of wetlands.


          NEW SECTION.  Sec. 2.  PURPOSE AND INTENT.    (1) It is the intent of this chapter to preserve, protect, manage, and regulate wetlands for the purposes of promoting public health, safety, and general welfare, while:  (a) Conserving fish, wildlife, and other natural resources of the state; (b) protecting the ecological and economic benefits to the public of wetlands functions and values; (c) regulating property use and development while maintaining the natural and economic benefits provided by wetlands, consistent with the general welfare of the state; (d) protecting private property rights consistent with the public interest; (e) providing private landowners an opportunity, within a regulated environment, to manage and develop their property for economic benefit; (f) providing for the systematic review of activities in and around wetlands so that the public benefits of wetlands are considered and protected; (g) creating a wetlands protection and management program on a cooperative basis between the state and local governments; (h) minimizing the duplication of permit approvals through integrated regulatory procedures; and (i) providing for protection against direct and indirect wetlands impacts by providing regulatory authority for management of wetlands buffers.

          (2) It is the short-term goal of the state of Washington to achieve no overall net loss of the remaining wetlands base, defined by acreage and function, and it is the long-term goal to restore and create wetlands, where feasible, to increase the quantity and quality of the wetlands resource base.  The public must share with the private sector the costs of restoring and creating wetlands to achieve this goal.  Although calling for a stable and eventually increasing inventory of wetlands, the goal does not imply that individual wetlands will in every instance be untouchable or that the overall no-net-loss goal can be achieved solely on an individual permit basis, only that the overall wetlands base reach equilibrium between losses and gains in the short term and increase in the long term.


          NEW SECTION.  Sec. 3.  DEFINITIONS.      Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

          (1) "Associated streams" means streams with a mean annual flow of twenty cubic feet per second or less, that are within one-half mile upstream of a regulated wetland, and which have a direct hydrologic surface connection with one or more regulated wetlands.

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

          (3) "Director" means the director of the department of ecology.

          (4) "Existing and ongoing agriculture" includes those activities conducted on lands defined in RCW 84.34.020(2), and those activities involved in the production of crops or livestock, for example, the operation and maintenance of farm and stock ponds or drainage ditches, operation and maintenance of ditches, irrigation systems including irrigation laterals, canals, or irrigation drainage ditches, changes between agricultural activities, and normal maintenance, repair, or operation of existing serviceable structures, facilities, or improved areas.  Activities which bring an area into agricultural use are not part of an ongoing operation.  An operation ceases to be ongoing when the area on which it is conducted is proposed for conversion to a nonagricultural use or has lain idle for more than five years, unless the idle land is registered in a federal or state soils conservation program, or unless the activity is maintenance of irrigation ditches, laterals, canals, or drainage ditches related to an existing and ongoing agricultural activity.  Forest practices are not included in this definition.

          (5) "Local government" means any county, city, or town that contains within its boundaries any regulated wetland subject to the provisions of this chapter.

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

          (7) "Wetlands," for the purposes of inventory, incentives, and nonregulatory programs, means those 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 the purposes of this definition, wetlands must have one or more of the following 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.

          (8) "Regulated wetlands," for the purposes of regulation under this chapter, means ponds twenty acres or less, including their submerged aquatic beds, and those lands defined as wetlands under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and rules promulgated pursuant thereto and shall be those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.  Regulated wetlands generally include swamps, marshes, bogs, and similar areas and include the segment of streams twenty cfs or less that are within a regulated wetland.  Regulated wetlands do not include those artificial wetlands intentionally created from nonwetland sites.  These include, but are not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities.  Wetlands created as mitigation and wetlands modified for approved land use activities shall be considered as regulated wetlands.

          (9) "Statutory general permit" means the permit granted under section 7 of this act.

          (10) "Wetlands buffers" means lands and associated streams bordering regulated wetlands which are managed to the extent necessary to protect the functions and values of regulated wetlands.

          (11) "Wetlands permit" is any permit issued pursuant to the authority of this chapter.

          (12) "Wetlands program" means a program adopted by a local government and approved by the department to protect and manage regulated wetlands and their buffers.

          (13) "Wetlands  standards" means those standards defined in this chapter or adopted by the department by rule or by local governments in their wetlands programs pursuant to this chapter.

          (14) "State wetlands rating system" means the method developed and adopted by the department based on four tiers for differentiating wetlands based on specific characteristics or functional attributes.

          (15) "Wetlands of state-wide significance" means those regulated wetlands determined by the department to have characteristics of exceptional resource value which should be afforded the highest levels of protection.


          NEW SECTION.  Sec. 4.  ELEMENTS OF A WETLANDS PROGRAM‑-ADOPTION OF WETLANDS PROGRAMS.           (1) A wetlands program sufficient to meet the requirements of this chapter shall include:

          (a) An inventory for all wetlands, as funding permits;

          (b) Specific regulations governing the activities listed in section 6(1) of this act when they occur in a regulated wetland or its buffer;

          (c) Identification and description of local permits to be used in administering the wetlands program;

          (d) A program for administering the permits required under section 6 of this act;

          (e) New or amended provisions of the comprehensive land use plan, where such a plan has been adopted;

          (f) New or amended provisions, where necessary, of local plans, programs, and ordinances;

          (g) Provisions relating to enforcement;

          (h) A mitigation policy consistent with the requirements of this chapter and rules adopted under this chapter;

          (i) Any wetlands impact assessment process established under section 12(3) of this act regarding water use efficiency improvements, if appropriate;

          (j) A description and location of facilities approved, constructed, or managed for storm water management which utilize regulated wetlands; and

          (k) An element for monitoring and considering cumulative effects of wetlands alteration from proposed projects.

          (2) Local governments may include provisions designed to encourage voluntary compliance by landowners including, but not limited to, offsetting or compensatory incentives such as permitting greater density in the adjoining uplands, transferring development rights to other uplands, and/or reduced assessed valuations for property taxes on property in their wetlands program.

          (3) The department shall develop and adopt rules for local wetlands programs, including defining major and minor program amendments, and procedures for program implementation and permit review, to serve prior to the adoption of or in the absence of local programs.

          (4) Except as provided in section 14(2) of this act, every local government shall prepare a proposed program and submit it to the department according to the following schedule:

          (a) All counties bordering Puget Sound and cities and towns within such counties:  July 1, 1992;

          (b) All other counties, cities, and towns:  July 1, 1993.

          (5) Before submission of a proposed program, a local government shall hold at least one public hearing on the proposal.

          (6) Within ninety days after receipt of a proposed program from a local government that is not approved under subsection (9) of this section, 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.

          (7) The department shall adopt rules specifying major and minor program amendments.  Major amendments shall be submitted to and acted upon by the department in the same manner as the original program.  Minor amendments shall be submitted to the department following local government adoption.

          (8) Upon the effective date of this act, and until adoption of local wetlands programs, activities identified in section 6 of this act undertaken within a regulated wetland or its buffer, shall comply with the spirit and intent of this chapter.

          (9) Local governments that have wetlands programs or equivalent programs in effect by the effective date of this act, or that have been  adopted prior to rules adopted by the department pursuant to this chapter, are deemed in compliance with this chapter unless the department makes a determination otherwise, pursuant to this subsection.

          (a) The department shall develop criteria to serve as standards of review of local programs adopted prior to adoption of rules.  Standards of review shall consider whether programs under this subsection substantially accomplish the spirit and intent and are at least as stringent in wetlands protection as this chapter.  Modifications to programs in effect by the effective date of this act, and development of new programs through the time of rules adoption by the department shall be done so in consideration of the spirit and intent  of this chapter.

          (b) Local government programs deemed in compliance with this chapter, under this subsection, shall submit their wetlands programs to the department for approval within ninety days after adoption of rules by the department.  The department shall approve, based on standards pursuant to (a) of this subsection, the submitted program, or provide specific modifications that must be made in order for the program to be approved within ninety days after its receipt.  Major and minor amendments to programs adopted prior to rules adoption by the department shall comply with the provisions of subsection (7) of this section and shall be consistent with the spirit and intent  of this chapter.

          (c) Local governments that do not have existing wetlands programs are encouraged to adopt programs complying with the provisions of this chapter as soon as possible.  The department shall provide implementation assistance to local governments when necessary.

          (10) Following the department's approval of a proposed program, the local government shall adopt and implement the program.


          NEW SECTION.  Sec. 5.  WETLANDS RATING SYSTEM.      (1) The department shall develop and adopt a four-tiered wetlands rating system with the highest category being wetlands of state-wide significance. The department shall provide by rule an option for local governments to combine two of the four tiers.  The department shall develop the wetlands rating system with assistance of an advisory committee comprised of interested parties.

          (2) Local governments shall rate wetlands within their jurisdictions according to the rating system.


          NEW SECTION.  Sec. 6.  WETLANDS PERMITS‑-APPROVED LOCAL PERMITS‑-STANDARDS FOR ISSUANCE‑-NOTICE‑-DEPARTMENT REVIEW.      (1) Except as provided in section 7 of this act, a permit shall be obtained from local government prior to undertaking the following activities in a regulated wetland or its buffer:

          (a) The removal, excavation, grading, or dredging of soil, sand, gravel, minerals, organic matter, or material of any kind;

          (b) The dumping, discharging, or filling with any material;

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

          (d) The driving of pilings;

          (e) The placing of obstructions;

          (f) The construction, reconstruction, demolition, or expansion of any structure;

          (g) The destruction or alteration of wetlands vegetation through clearing, harvesting, shading, intentional burning, or planting of vegetation that would alter the character of a regulated wetland, provided that these activities are not part of a forest practice regulated under section 7 of this act; or

          (h) Activities that result in the introduction of pollutants or a significant change of chemical characteristics of wetlands water sources.

          (2) Local governments, consistent with rules of the department, shall designate in their wetlands programs, activities, if any, not requiring a permit under subsection (1) of this section where:

          (a) The activities are minor, including activities of a temporary nature or ongoing uses, which have minimal adverse impacts on regulated wetlands; or

          (b) The activities are conducted within a wetlands buffer but not within a regulated wetland, and do not adversely impact regulated wetlands functions and values.

          (3) Local governments shall establish a program, consistent with rules adopted by the department, for the administration and enforcement of the permit system provided in this section, which shall be included in the wetlands program required by section 4 of this act.  The department shall provide technical assistance to local governments consistent with this chapter prior to the adoption of department rules and approval of local wetlands programs.  Local governments are authorized to incorporate the permit system into existing local government permit systems to avoid duplicate permitting, where the system is consistent with the requirements of this chapter.

          (4) A permit shall only be granted if the permit, as conditioned, is consistent with the provisions of this chapter and, after approval or adoption of the department rules and local wetlands program.

          (5)(a) Local government shall provide notice of applications for wetlands permits pursuant to rules developed by the department and shall use to the extent practical existing permit notification procedures.  Notification procedures shall be specified in local programs.

          (b) The department shall, by rule, specify procedures for notification of permit applications and time limits for comment by the department for permits related to the two highest categories of regulated wetlands and their buffers.  No permit shall be issued under this subsection prior to receipt of such comments or the expiration of the time period set by rule  or any extension.

          (6) Wetlands permits shall not be effective and no activity thereunder shall be allowed during the time provided to file a permit appeal.

          (7) Upon receipt of an application for a permit authorizing activities on a wetland of state-wide significance or its buffer, local governments shall submit the application to the department for its approval or disapproval.  The department shall submit its decision and the reasons for the decision within the times established pursuant to rules adopted under subsection (5)(b) of this section.

          (8) Notwithstanding the provisions of subsection (1) of this section, a forest practice regulated by chapter 76.09 RCW occurring on lands not being converted to a nonforest use or platted since 1960 or otherwise exempt from local permits is not subject to this section.


          NEW SECTION.  Sec. 7.  STATUTORY GENERAL PERMIT. (1) Activities described in this section and conducted in compliance with this section may be undertaken without obtaining a permit under section 6 of this act.  Except as provided in this section, local governments shall not require wetlands permits or otherwise impose additional conditions under this chapter on activities granted a statutory general permit under this section.

          (2) The person conducting the activity shall be required to provide prior notification to the appropriate local government except for activities described in subsection (3) (a), (b), (d), (i), and (j) of this section.

          (3) The following activities are governed by this section:

          (a) Existing and ongoing agriculture as defined in section 3 of this act.  Best management practices as developed by conservation districts shall be encouraged;

          (b) Water use efficiency improvements related to existing and ongoing agriculture, provided such improvements are subject to the wetlands impact assessment process developed by the department according to section 12(3) of this act and adopted by local government according to section 4(1)(i) of this act;

          (c) Water use efficiency improvements related to existing and ongoing agriculture undertaken to increase supplies in response to prorated water allocations or as a result of a water rights adjudication;

          (d) Forest practices as regulated and conducted in accordance with the provisions of chapter 76.09 RCW and forest practice regulations;

          (e) Activities affecting wetlands where the wetland is up to one-half acre, the size of which shall be determined by local government, and within the lowest wetlands rating system category adopted by the local government;

          (f) Maintenance, operation, and reconstruction of existing private and public roads, streets, utilities, and associated structures.  The department shall provide by rule, notification requirements for such activities that may have adverse impacts to adjacent regulated wetlands.  Reconstruction of an existing serviceable structure associated with the roads, streets, or utilities shall be allowed if the reconstruction does not increase the ground floor area, unless the local government with wetlands jurisdiction determines that there is an alternate suitable location within the land parcel that would result in less impact to wetlands;

          (g) Maintenance or reconstruction of residential structures, commercial structures, or structures related to existing and ongoing agricultural practices as defined in section 3 of this act, under the following conditions:

          (i) Reconstruction shall be commenced within five years of the damage or destruction;

          (ii) Notification shall be required for reconstruction;

          (iii) Reconstruction shall not increase the ground floor area and shall be limited to the existing site unless the local government with wetlands jurisdiction approves an alternative location within the land parcel that would result in less adverse impacts to regulated wetlands; and

          (iv) The percentage of destruction beyond which reconstruction is not allowed is determined by the department or local government, as appropriate;

          (h) Storm water management facilities approved, constructed, or managed for storm water management prior to the effective date of this act;

          (i) Activities and construction necessary on an emergency basis to prevent an immediate threat to public health and safety, or public or private property.  Notification as soon as practical to the local government shall be required; and

          (j) Activities of a temporary nature, or activities which represent ongoing uses having minimal adverse impact to regulated wetlands,  described in local wetlands  programs pursuant to rules adopted by the department.

          (4) Provisions of this section shall not apply to any activity conducted for the purpose of conversion of a regulated wetland to a use to which it was not previously subjected.


          NEW SECTION.  Sec. 8.  WETLANDS BUFFERS INCLUDING ASSOCIATED STREAMS.          (1) Wetlands buffers shall be managed to protect the functions and values of regulated wetlands from adverse impacts of activities on adjacent lands.

          (2) The department shall adopt rules that provide ranges of wetlands buffer sizes necessary to protect wetlands functions and values based on wetlands rating system categories, types and intensity of adjacent land uses, population density, and the geographic diversity of the state.

          (3) Local governments shall incorporate wetlands buffer sizes into their local wetlands programs from within the ranges provided by department rules, unless the local government determines that a larger or smaller buffer is necessary to protect wetlands functions or values based on local conditions.  This determination shall be supported by appropriate documentation showing that it is reasonably related to protection of the functions and values of regulated wetlands.  Such determination shall be included with the submission of the local wetlands program or any amendment to the department for approval.


          NEW SECTION.  Sec. 9.  MITIGATION.       (1) All adverse impacts to wetlands functions, values, and acreage shall be mitigated.

          (2) Mitigation, in the descending order of preference, is as follows:

          (a) Avoiding the impact altogether by not taking a certain action or part of an action;

          (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;

          (c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

          (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

          (e) Compensating for the impact by replacing, enhancing, or providing substitute wetlands resources or utilizing mitigation banking opportunities provided under subsection (10) of this section if available.

          (3) In developing rules for the sequencing of mitigation preferences, the department shall include criteria for avoidance whereby avoidance requirements are most stringent for wetlands in the highest rating system category and least stringent for wetlands in the lowest rating system category.  Rules governing mitigation sequencing shall further provide for consideration of public benefit, including those which may derive from the enhancement of wetlands of a lower rating system category to a higher rating system category, or from water dependent uses.

          (4) Prior to local government approval of a proposal which includes less preferred mitigation, the applicant must demonstrate that:

          (a) No overall net losses will occur in wetland functions, values, and acreage;

          (b) The restored, created, or enhanced wetland will be as persistent as the wetland it replaces;

          (c) The project applicant demonstrates sufficient scientific expertise, supervisory capability, and financial resources to carry out the proposal; and

          (d) The project applicant agrees to demonstrate the capability for monitoring the site for a period of time adequate to determine its long-term success.   (5) Where regulated wetlands are altered, the project applicants shall restore or create equivalent areas of wetlands in order to compensate for wetland losses.  Equivalent areas shall be determined according to function, acreage, type, location, time factors, and projected success.

          (6) Where feasible, restored or created wetlands shall be a higher category than the altered wetland.

          (7) The department shall develop and adopt acreage replacement ratios by wetlands rating categories.  Activities in higher wetlands rating system categories shall require more stringent mitigation.

          (8) A local government shall require an approved mitigation plan as a condition of issuance of a permit under section 6 of this act for activities in regulated wetlands  and their buffers.  Mitigation plans for wetlands of state-wide significance and their buffers shall require approval of the department.

          (9) Each mitigation plan shall provide that:

          (a) All identified adverse impacts are mitigated;

          (b) Monitoring of mitigation be performed for a period adequate to determine its long-term success;

          (c) A contingency plan is available that identifies actions to be taken if the implemented mitigation is unsuccessful;

          (d) The permittee is financially responsible for additional mitigation action should any element of the mitigation plan fail;

          (e) Mitigation shall be implemented concurrently with the regulated activity under the permit, except that local governments may establish performance standards and require mitigation be completed no later than the date upon which the regulated activity may proceed under the permit, if the likelihood of success is substantially doubtful.  Financial assurance may be in the form of a bond or other acceptable forms of security.

          (10) Any person may participate in wetlands mitigation banking by proposing to create wetlands to compensate for wetlands impacts.  A proposal for a wetlands bank creation project shall be submitted for department and local government approval.  If approved by the department and the local government, the mitigating wetlands created may upon application by the proponent and concurrence of the owner of the created wetland be counted as mitigation for on-site or off-site wetlands impacts.

          (11) Compensatory mitigation of impacts to wetlands buffers shall be only that necessary to protect wetlands functions and values and to avoid or minimize adverse impacts to regulated wetlands.

          (12) Local governments shall not require additional mitigation pursuant to other authorities for impacts to regulated wetlands functions and values or their buffers when mitigation is required pursuant to this section to minimize those impacts.

          (13) This section does not apply to construction, reconstruction, or maintenance of single-family residences on lots platted by the effective date of this act on wetlands one-half acre or less in size and within the lowest wetlands rating system category adopted by the local government.

          (14) The department shall adopt rules to implement this section.


          NEW SECTION.  Sec. 10.  ENFORCEMENT‑-CIVIL PENALTY‑-ADMINISTRATIVE ORDERS‑-ACTIONS FOR DAMAGES AND RESTORATION.        (1) The department and local governments are authorized to bring appropriate actions at law or equity, including actions for injunctive relief, to ensure that no uses are made of regulated wetlands or their buffers which are inconsistent with the requirements of this chapter, the rules of the department, or an applicable wetlands program.

          (2) Any person who undertakes any activity within a regulated wetland or its buffer without first obtaining a permit required by this chapter, or any person who violates the conditions of any permit required by this chapter or of any order issued pursuant to subsection (3) of this section shall incur a civil penalty of up to one thousand dollars per violation.  In the case of a continuing violation, each permit violation and each day of activity without a required permit  shall be a separate and distinct violation.  The penalty amount shall be set in consideration of the previous history of the violator and the severity of the environmental impact of the violation.  The penalty provided in this subsection by the department shall be imposed pursuant to the procedures set forth in RCW 43.21B.300, except as provided in section 11 of this act.  The penalty provided in this subsection and imposed by local government shall be appealable to the superior court within the subject jurisdiction.

          (3) Whenever any person violates this chapter or any permit issued thereunder, the department or local government may issue an order reasonably appropriate to cease such violation and to mitigate any environmental damage resulting therefrom.  Orders issued pursuant to this subsection by the department may be appealed pursuant to section 11 of this act. Orders issued pursuant to this subsection by local governments may be appealed as provided for by local ordinance or as otherwise allowed by law or as provided in section 11(2) of this act.

          (4) The shorelines hearings board shall conduct the reviews authorized by this section as adjudicatory proceedings pursuant to chapter 34.05 RCW.  Judicial review of the decisions of the shorelines hearings board shall be pursuant to chapter 34.05 RCW.

          (5) Any person subject to the jurisdiction of this chapter who violates any provision of this chapter or a permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to violation.  The attorney general or local government attorney shall bring suit for damages under this section on behalf of the state or local governments.  Private persons shall have the right to bring suit for damages under this section on their own behalf and on behalf of all persons similarly situated.  If liability has been established for the cost of restoring an area affected by a violation, the court shall make provision to assure that restoration will be accomplished within a reasonable time at the expense of the violator.  In addition to such relief, including monetary damages, the court in its discretion may award attorneys' fees and costs of the suit to the prevailing party.


          NEW SECTION.  Sec. 11.  APPEALS TO THE SHORELINES HEARINGS BOARD‑-STAY PENDING APPEAL‑-JUDICIAL REVIEW.     (1) Any person aggrieved by the issuance, denial, or recision of a wetlands permit governing activity on a wetland of state-wide significance or its buffer may appeal the same within thirty days to the shorelines hearings board.

          (2) Any person aggrieved by the issuance, denial, or recision of any wetlands permit who wishes to appeal to the shorelines hearings board and believes their appeal raises programmatic issues may, within thirty days after exhaustion of local appeals, file a request with the department to certify their appeal to the shorelines hearings board.  The department shall rule upon any such request within thirty days of receipt.  If the department determines, in its discretion, that the appeal raises programmatic issues it shall certify the case to the shorelines hearings board, which shall take jurisdiction over the appeal.  If the department fails to certify, or denies certification, then the time period to otherwise appeal the permit decision begins to run on the date of the department's action, or thirty days after filing the request, whichever is sooner.

          (3) Activities authorized by permits appealed to the shorelines hearings board are stayed and may not be undertaken until thirty days from the final order of the shorelines hearings board, affirming the permit, unless the appellant by written stipulation agrees to an earlier lifting of the stay.

          (4) The shorelines hearings board shall conduct the review authorized by this section as an adjudicative proceeding pursuant to chapter 34.05 RCW.  The determination of a stay pending review shall be pursuant to RCW 34.05.550.

          (5) Except as provided in subsections (1) and (2) of this section, appeal of permits shall be governed by the law otherwise applicable to appeal of local permits, used to administer this chapter.


          NEW SECTION.  Sec. 12.  DUTIES, RESPONSIBILITIES, AND POWERS OF THE DEPARTMENT.        The department shall have authority to:

          (1) Adopt rules for the development and adoption of local wetlands programs, wetlands rating systems, buffers, mitigation, wetlands standards, notification procedures, wetlands program implementation and permit review process for local governments to serve in the absence of adopted local programs, criteria for designating location and extent of regulated wetlands, and such other rules as are necessary to carry out the provisions of this chapter.  Rules shall be adopted by July 1, 1991;

          (a) Wetlands standards adopted by the department or by local governments under this chapter shall apply to wetlands under the jurisdiction of chapter 90.58 RCW;

          (b) Prior to adopting rules under this subsection, the department shall consult with local governments, agencies with expertise, and affected Indian tribes, and shall provide for adequate public involvement;

          (2) Approve, periodically review, require modifications to wetlands programs and major program amendments, and take appropriate actions to ensure compliance with wetlands standards;

          (3) Develop a wetlands impact assessment process in conjunction with the demonstration conservation plan required by RCW 90.54.190 to balance the public policies of wetlands protection and water use efficiency to be implemented consistent with chapter 90.03 RCW with input from representatives of water users, members of the public, tribal governments, and the departments of agriculture, fisheries, and wildlife for adoption into local wetlands programs, where applicable, to assist in local decision making regarding water use efficiency improvements and wetlands protection;

          (4) Develop standards for wetlands inventories.  As funding permits, work cooperatively and assist local governments with conducting and maintaining field inventories.  Wetlands inventories may be phased to make efficient use of available funds and data.  The department shall consult with agencies with expertise, tribes, and local governments for assistance in determining the appropriate means of phasing inventories;

          (5) Oversee the development, implementation, and maintenance of a wetlands data management system, as funding permits, to store and manage wetlands inventory data to assist with implementing the statute and coordinate with other natural resources agencies to complete tasks related to the data management system;

          (6) Provide technical assistance to local governments and other affected parties;

          (7) Develop a model wetlands ordinance for assistance to local governments;

          (8) Provide local governments and the public with information on wetlands functions and values, protection, and management;

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

          (10) Cooperate with other persons, including nonprofit organizations, federal, state, and local agencies and tribes in protecting and managing wetlands and planning wetlands interpretative sites;

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

          (12) Contract for professional or technical services.


          NEW SECTION.  Sec. 13.  REVIEW BY ECOLOGICAL COMMISSION NOT REQUIRED.            The department is not required to seek review or advice and guidance from the ecological commission with respect to the adoption of any local wetlands programs and program amendments.


          NEW SECTION.  Sec. 14.  DUTIES AND RESPONSIBILITIES OF LOCAL GOVERNMENTS.      (1) Each local government shall:

          (a) Develop, adopt, administer, and enforce wetlands programs including wetlands permits, mitigation, buffers, wetlands rating, and permit appeals.  Elements of the program shall be incorporated into its comprehensive land use plan prepared pursuant to chapters 35.63 and 36.70 RCW or its comprehensive storm water management plan.  Where a comprehensive plan does not exist, local governments shall prepare and adopt a wetlands plan containing elements of section 4 of this act;

          (b) Participate, as funding permits, in the preparation and verification, jointly with the department, of an inventory of wetlands within its jurisdiction using inventory standards developed by the department; and

          (c) Designate a lead or co-lead agency to administer the provisions of this chapter with respect to regulated wetlands and their buffers that are within the jurisdiction of two or more local governments.

          (2) In carrying out the responsibilities of this section, incorporated cities and towns within a county may enter into an interlocal agreement with the county in which they are located for developing and administering wetlands programs.  Where cities have entered into an interlocal agreement with a county for the purpose of developing and administering wetlands programs and where the applicable county has elected to institute a conservation futures tax pursuant to RCW 84.34.230, proceeds derived from the conservation futures tax may be utilized for wetlands acquisition within the participating cities.


          NEW SECTION.  Sec. 15.  NONREGULATORY ELEMENTS. (1) The restrictions imposed by this chapter shall be considered by the county assessor in establishing the fair market value of the property.

          (2) The department shall convene a committee consisting of local governments, resource agencies, Indian tribes, and affected private groups, to examine nonregulatory methods pursuant to section 17(2) of this act.

          (3) The department shall work with the departments of wildlife and natural resources and interested private and public parties to identify financial support for wetlands program development activities, inventorying, managing, and wetlands acquisition.

          (4) The departments of wildlife and natural resources may accept grants, contributions, and appropriations from nonprofit organizations, and from federal, state, and local agencies for acquisition of converted lands or low category wetlands, to assist in attaining the long-term goal of this chapter and to increase the quantity and quality of wetlands.


          NEW SECTION.  Sec. 16.  A new section is added to chapter 76.09 RCW to read as follows:

          Within twenty-four months after the effective date of this act,  the forest practices board and the department of ecology shall jointly adopt forest practices rules to accomplish the purposes and intent of sections 1 through 14 of this act.  The forest practices board shall submit to appropriate committees of the house of representatives and senate status reports every six months on the progress of developing rules to implement this chapter.

          The department of natural resources may impose conditions to protect wetlands functions and values and wetlands buffers from adverse effects of forest practices until the effective date of such rules and thereafter to the extent provided in such rules.


          NEW SECTION.  Sec. 17.    The department shall:

          (1) Within twelve months after the effective date of this act, report to the legislature on the progress made in developing the wetlands impacts assessment process required by RCW 90.54.190 according to section 12(3) of this act;

          (2) Convene a committee consisting of local governments, resource agencies, Indian tribes, and affected private groups, to:

          (a) Examine nonregulatory methods including but not limited to preservation, conservation easements, restoration, tax incentives, technical assistance, regional planning, and education, low-cost, low-impact interpretive sites, and to develop opportunities and processes for shared responsibility between the state and the private sector for restoring and creating wetlands including mitigation banking to meet the goals of this chapter;

          (b) Make program recommendations;

          (c) Determine funding needs and explore funding sources for nonregulatory wetlands protection methods; and

          (d) Report to the 1991 legislature on the recommendations and funding needs of the nonregulatory methods report.


          NEW SECTION.  Sec. 18.  SHORT TITLE.   This chapter shall be known and cited as the wetlands management act of 1990.


          NEW SECTION.  Sec. 19.  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. 20.    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. 21.  CAPTIONS.         Captions as used in this act do not constitute any part of the law.


          NEW SECTION.  Sec. 22.    Sections 1 through 15 and 17 through 21 of this act shall constitute a new chapter in Title 90 RCW.