AN ACT Relating to wetlands protection and management; amending RCW 35.13.010; adding a new chapter to Title 90 RCW; adding a new section to chapter 76.09 RCW; creating a new section; prescribing penalties; and declaring an emergency.

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

NEW SECTION. Sec. 1. PURPOSE AND INTENT. (1) It is the intent of this chapter to preserve, protect, manage, and regulate wetlands state-wide 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; (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; and (h) avoiding the duplication of permit approvals through integrated regulatory procedures.

(2) It is the further intent of this chapter to provide additional protection for wetlands in areas of high growth because these wetlands are subject to greater pressure for conversion to other uses and experience greater impact from surrounding development. It is also the intent of the legislature to not impose overly burdensome regulation on areas that are sparsely populated, losing population, or are growing slowly.

(3) It is the goal of the state of Washington to achieve no overall net loss of the remaining wetlands base, defined by acreage and function. 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.

(4) The legislature recognizes that maintaining agricultural land in an agricultural use provides the public with many benefits, including affordable food, open space, and an aesthetically pleasing environment. In addition, lands in use for agricultural purposes perform many of the same functions as wetlands, such as aquifer recharge and flood control. In order to maintain these benefits, it is necessary to preserve the economic viability of agricultural operations. Accordingly, it is the goal of the state of Washington to cause no net loss of agricultural lands in high-growth areas as a result of the application of this chapter.

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

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

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

(3) "Normal or necessary agriculture" includes those activities conducted on lands defined in RCW 84.34.020(2), private upland fin fish hatching and rearing facilities, and those activities, structures, and facilities related to the production, preparation, or sale of agricultural products, livestock, or commercially reared fish, including residences for farm owners or employees, farm service roads, irrigation facilities, drainage facilities, and farm and stock ponds.

(4) "High-growth area" means any county that has had its population increase by more than ten percent in the previous ten years and has a population of over thirty thousand, and all counties consisting of islands.

(5) "Low or no-growth areas" means those counties that are not defined as high-growth areas.

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

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

(8) "Regulated wetland" means ponds twenty acres or less, including their submerged aquatic beds, and only 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. 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) "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.

(10) "Wetland buffer" or "buffer" means lands bordering regulated wetlands which are to be managed only to the extent necessary to protect the functions and values of regulated wetlands. As used in this chapter, the term shall apply only as provided in section 7 of this act.

(11) "Wetlands permit" is any permit issued by local government to administer the provisions 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 under this chapter.

(14) "Wetlands of state-wide significance" means those regulated wetlands which have unique resource value based on such characteristics as: Documented habitat of endangered or threatened species of plants and wildlife, habitat for extraordinary numbers of animals and sensitivity to disturbance. These wetlands should be afforded the highest degree of protection. Examples of such wetlands are the Nisqually Delta and Bowerman Basin.

NEW SECTION. Sec. 3. 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 regulated wetlands, as funding permits;

(b) Specific rules governing the activities listed in section 5(1) of this act when the activities occur in a regulated wetland or its buffer;

(d) A program for administering the permits required under section 5 of this act;

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

(f) Provisions relating to enforcement and appeals;

(g) A mitigation plan and standards consistent with the requirements of this chapter and rules adopted under this chapter;

(h) A mitigation policy that requires persons undertaking development of upland areas to pay the increased costs including cleaning ditches and canals, draining wetlands created by the run-off caused by development of upland areas, and pumping the additional water from adjacent farmlands that are in an agricultural preservation area as designated by a county;

(i) Any wetlands impact assessment process established under section 11(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 that utilize regulated wetlands;

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

(l) An element that requires wetlands owned by or under the management control of state agencies to control noxious weeds identified under RCW 17.10.080.

(2) (a) Using the checklist and guidelines for the evaluation of risk and avoidance of unanticipated takings prepared by the attorney general under subsection (4) of this section, local governments shall determine alternatives to a proposed local program or action that would fulfill the government's legal obligations but that would reduce the impact on the private property owner and thus the taking risk.

(b) Local governments shall consider 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 enrolled in the open spaces program under chapter 84.34 RCW.

(3) The department shall develop and adopt rules for local wetlands programs, and procedures for program implementation and permit review.

(4) For the purpose of administering this chapter, the attorney general shall develop a checklist and guidelines for the evaluation of risk and avoidance of unanticipated takings by July 1, 1990, to assist local governments in the identification and evaluation of governmental acts and policies which have takings implications. The development of a checklist and guidelines shall not be construed to insure local governments against liability for takings, or to render any state agency or state officer liable for a taking.

(5) Except as provided in section 13(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 no later than July 1, 1992;

(b) All other counties, cities, and towns no later than July 1, 1993.

(6) Before submission of a proposed program, a local government shall hold public hearings on the proposal.

(7) This chapter establishes a cooperative program of wetlands management between local government and the state. Local government shall have the primary responsibility for initiating and administering the regulatory program of this chapter. The department shall act primarily in the supportive and review capacity with primary emphasis on insuring compliance with the policy and provisions of this chapter.

(8) Local governments that have wetlands programs or equivalent programs in effect by February 20, 1990, that substantially comply with the spirit and intent of this chapter and that are at least as stringent in wetlands protection as this chapter, are deemed in compliance with this chapter and shall be so certified by the department.

(9) Local governments shall submit wetlands programs adopted anytime after February 20, 1990, to the department for approval. The local government wetlands program shall be approved by the department if the department determines that the submitted program complies with sections 2(8) and 8 of this act and is consistent with the policy and provisions of this chapter and rules when adopted pursuant to this chapter.

The department shall approve or deny approval of the program and, if approval is denied, the department shall provide the specific reasons for the denial within ninety days after receipt of the submittal by the local government.

After approval, major and minor amendments to existing programs shall comply with the provisions of subsection (11) of this section.

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

(11) 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. Notice of minor amendments shall be submitted to the department following local government adoption.

(12) A wetlands management program developed after the dates specified in subsection (5) of this section shall be effective only after approval by the department and subsequent adoption by local government. Local government shall inform the department of the effective date of the program.

(13) Wetlands management rules developed and adopted by the department as criteria for program implementation and permit review for local governments shall govern while local plans are being developed or in the absence of local programs.

NEW SECTION. Sec. 4. 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 the two top tiers of the four tiers. The department shall develop the wetlands rating system with assistance of an advisory committee comprised of interested parties in accordance with the following general guidelines:

(a) Class one wetlands are those wetlands of state-wide significance as defined in section 2(14) of this act.

(b) Class two wetlands are those wetlands that include marshes, swamps, and bogs and are easily recognized as wetlands by the general public. They typically cover more than one acre and have standing water on them the majority of the year. These wetlands have significant resource value and are not easily replaced. Examples of wildlife that are found in or on these wetlands include fish, frogs, waterfowl, and turtles. Typical vegetation includes lily pads and cattails.

(c) Class three wetlands are those wetlands that consist of wet soil or meadows and are not commonly recognized by the general public as wetlands. They are only covered by standing water on an irregular basis. These wetlands are common in occurrence and do not necessarily support unique wildlife or vegetative communities. Typical vegetation includes deciduous trees, brush, vines, and grasses which thrive on wet soil conditions. Many river bottom pasture and crop lands in western Washington fall into this category.

(d) Class four wetlands are those wetlands that are least likely to be recognized as such by the general public. They are usually of a small size and are typically dry for most of the year. Examples of these wetlands include dry stream beds, mudholes, and drainage areas. These wetlands may serve important hydrologic functions but are of little value as habitat for typical wetland wildlife or vegetation.

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

NEW SECTION. Sec. 5. WETLANDS PERMITS‑-APPROVED LOCAL PERMITS‑-STANDARDS FOR ISSUANCE‑-NOTICE‑-DEPARTMENT REVIEW. (1) Except as provided in section 6 of this act, a permit shall be obtained from the appropriate 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;

(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 6 of this act or undertaken to control noxious weeds identified pursuant to RCW 17.10.080;

(h) Activities that result in the introduction of pollutants in excess of water quality standards 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 the activities are minor, including activities of a temporary nature or ongoing uses, and have minimal adverse impacts on regulated wetlands.

(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 3 of this act. Local governments are authorized to incorporate the permit system into existing local government permit systems to avoid duplicate permitting, where the existing permit system is made 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 a local wetlands program.

(5)(a) Local government shall provide notice of applications to the public 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 wetlands of state-wide significance 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.

(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 a complete 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. 6. (1) Except for activities described in subsection (2) (a), (b), (d), (m), and (n) of this section, the person conducting the activity shall provide prior notification to the appropriate local government before conducting any activity described in subsection (2) of this section.

(2) Local governments shall not require wetlands permits or otherwise impose conditions under this chapter on the following activities:

(a) Normal or necessary agricultural activities as defined in section 2 of this act. Best management practices as developed by conservation districts shall be encouraged. Nothing in this chapter shall be interpreted to allow new agricultural activities to be conducted on class one or class two wetlands or to allow the construction of facilities related to the preparation or sale of agricultural products other than those produced primarily by the owner or lessee of the agricultural land on which such facilities are situated without obtaining a permit or otherwise complying with the provisions of this chapter. Normal or necessary agricultural activities may bring a class three or class four wetland or its buffers into agricultural use: PROVIDED, That prior to any operation converting the area to a nonagricultural use, the class three or class four wetland shall be restored or mitigated according to the provisions of this chapter upon the approval of the local government. Buffers adjacent to lands on which normal or necessary agricultural activities are being conducted shall not be required while such lands are in an agricultural use;

(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 11(3) of this act and adopted by local government according to section 3(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 rules;

(e) Activities, other than those in this section, affecting class three or class four wetlands may be regulated at the option of the local government;

(f) Activities to control mosquitoes conducted by public agencies;

(g) Existing and ongoing private upland fin fish facilities;

(h) Activities affecting regulated wetlands where the wetland is less than fifteen thousand square feet and within class three and class four wetlands, except that a person who constructs a single-family residence and will not occupy the residence being constructed or constructs a commercial structure on a regulated wetland and the wetland is less than fifteen thousand square feet shall, before commencing construction, pay into a wetland mitigation bank established by the local government in which the wetland is located an amount equal to six-tenths of the assessed valuation of any one acre tract adjoining the wetland as shown in the most recent tax statement for the property multiplied by the functional portion of an acre that constitutes the wetland;

(i) Activities related to the construction or reconstruction of single-family residences and appurtenances affecting regulated wetlands on properties where the wetland is greater than fifteen thousand square feet and less than thirty-five thousand square feet, the size of which shall be determined by local government within a class four wetlands provided that the residence is to be occupied by the person for whom the residence is being constructed;

(j) Maintenance, operation, and reconstruction of existing private and public roads, streets, railroads, utilities, and associated structures, and serviceable freshwater and marine terminals that are part of an existing and ongoing public port facility. 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, railroads, utilities, or freshwater and marine public port terminals, 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. Reconstruction of freshwater and marine public port terminals shall be commenced within five years of damage or destruction;

(k) Maintenance or reconstruction of residential structures or commercial structures 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. Local government with wetlands jurisdiction may request an alternative location within the land parcel that would result in less adverse impacts to regulated wetlands;

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

(m) Surface coal mining activities licensed under Public Law 95-87 as of the effective date of this act, for so long as these lands are covered by the permit issued pursuant to Public Law 95-87;

(n) Hardrock mineral extraction operations not including sand and gravel operations or road construction. No tailings or other materials may be placed on wetlands of state-wide significance. Best management practices and operating plan submittals as required by the department of natural resources and nonpoint source water quality protection provisions as developed by the department shall be followed;

(o) 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

(p) 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.

(3) Unless otherwise provided in this chapter, no activity may be conducted for the purpose of conversion of a regulated wetland to a use to which it was not previously subjected.

NEW SECTION. Sec. 7. WETLANDS BUFFERS. (1) Wetlands buffers shall be managed in high growth areas 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 only to the extent 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 in high-growth areas 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 necessary to protect 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.

(4) Local governments in low or no-growth areas may not incorporate wetland buffer sizes into their local wetlands programs for class two, three, and four wetlands. Local governments in low or no-growth areas may incorporate wetland buffer sizes for wetlands of state-wide significance.

(5) County governments shall have the option in sparsely populated lands within high-growth areas to not establish buffers adjacent to regulated wetlands except wetlands of state-wide significance. "Sparsely populated lands" means those areas that have one or fewer single-family dwelling units per five or more acres.

NEW SECTION. Sec. 8. MITIGATION. (1) For activities subject to the permit requirement under section 5 of this act, 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;

(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. Mitigation sequencing will begin with subsection (2)(a) of this section for wetlands within the two highest rating system categories, and for the two lowest categories mitigation sequencing will begin with subsection (2)(b) of this section. Rules governing mitigation sequencing shall further provide for consideration of public benefit, including those that 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 that 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 5 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;

(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 and appurtenant buildings on lots platted by the effective date of this act on regulated 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. 9. 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 that 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 under 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 under the procedures set forth in RCW 43.21B.300, except as provided in section 10 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 under this chapter, the department or local government may issue an order reasonably appropriate to cease the violation and to mitigate any environmental damage resulting from the violation. Orders issued under this subsection by the department may be appealed under section 10 of this act. Orders issued under 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 10(2) of this act.

(4) The shorelines hearings board shall conduct the reviews authorized by this section as adjudicatory proceedings under chapter 34.05 RCW. Judicial review of the decisions of the shorelines hearings board shall be under 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 under this chapter shall be liable for all damage to public or private property arising from the 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. 10. APPEALS TO THE SHORELINES HEARINGS BOARD‑-STAY PENDING APPEAL‑-JUDICIAL REVIEW. (1) Except as provided in subsection (6) of this section, 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 the 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 under chapter 34.05 RCW. The determination of a stay pending review shall be under RCW 34.05.550.

(5) Except as provided in subsections (1), (2), and (6) of this section, appeal of wetland permits at the local level shall be governed by the law otherwise applicable to appeal of local permits used to administer this chapter.

(6) A permit applicant who believes that the denial of a permit or the conditions upon the issuance of a permit will deny the applicant the reasonable use of his or her property may appeal the permit decision as follows: (a) To the local government legislative authority, and may thereafter obtain judicial review of the decision of the legislative authority on appeal; or (b) an appeal may be filed by such person directly to the superior court within the subject jurisdiction.

Where the local government legislative authority or the superior court determines that the applicant has been denied the reasonable use of his or her property in violation of the Constitution, the legislative authority or court shall order the issuance of the permit or the removal or modification of the conditions upon the issuance of the permit.

NEW SECTION. Sec. 11. 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, 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. The department shall file any proposed rules or amendments to existing rules to be adopted pursuant to this chapter with the code reviser's office no later than November 21 of the year prior to their taking effect. Such rules shall take effect no sooner than the end of the next regular legislative session as long as no substantive changes are made to the proposed rules. Rules shall be adopted by July 1, 1991. 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, local governments, 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. Before adopting the impact assessment process, the department shall provide a written report to the legislature on how the process will comply with state water law;

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

(5) Develop a model wetlands ordinance for assistance to local governments by July 1, 1991;

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

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

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

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

(10) Contract for professional or technical services.

The actions taken by the department under this chapter shall not be deemed to render the state or any state agency or state officer liable for a taking in connection with the adoption, administration, or enforcement of any local wetlands program, unless the acts of a local government that are found to constitute a taking are shown to be nondiscretionary acts taken solely to meet a requirement of state law or a requirement contained in a rule adopted under this section.

NEW SECTION. Sec. 12. 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. 13. DUTIES AND RESPONSIBILITIES OF LOCAL GOVERNMENTS. (1) Each local government shall:

(a) Develop, adopt, administer, and enforce wetlands programs including wetlands permits, mitigation, buffers, and permit appeals;

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

(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; and

(d) Develop, adopt, administer and enforce shorelines management programs pursuant to chapter 90.58 RCW.

(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 under RCW 84.34.230, proceeds derived from the conservation futures tax shall be utilized for wetlands acquisition according to a priority acquisition list agreed to by all participants.

NEW SECTION. Sec. 14. NONREGULATORY ELEMENTS. (1) The county assessor shall adjust the assessed valuation of property to take into consideration any change in land value that results from the restrictions imposed by this chapter.

(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.

NEW SECTION. Sec. 15. 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 shall adopt forest practices rules to accomplish the purposes and intent of sections 1 through 13 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.

Sec. 16. Section 35.13.010, chapter 7, Laws of 1965 and RCW 35.13.010 are each amended to read as follows:

Any portion of a county not incorporated as part of a city or town but lying contiguous thereto may become a part of the city or town by annexation: PROVIDED, That property owned by a county, and used for the purpose of an agricultural fair as provided in chapter 15.76 RCW or chapter 36.37 RCW shall not be subject to annexation without the consent of the majority of the board of county commissioners. Farm and agricultural land in counties with an agricultural land preservation plan adopted by the county council or board of county commissioners, which includes a map or other clear description of such farm and agricultural lands being preserved by the county under the plan, shall not be subject to annexation if they contain wetlands or are contiguous to wetlands. An area proposed to be annexed to a city or town shall be deemed contiguous thereto even though separated by water or tide or shore lands on which no bona fide residence is maintained by any person.

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 11(3) of this act;

(2) Immediately convene the wetland policy advisory committee composed of the following: One representative from the department of ecology; one representative from the department of natural resources; one representative from an Indian tribe; one representative selected by the Washington environmental council; two representatives selected by the association of Washington cities, one of whom shall be from a high-growth area and one of whom shall be from a low or no-growth area; two representatives selected by the Washington state association of counties, one of whom shall be from a high-growth area and one of whom shall be from a low or no-growth area; one representative selected by the Washington public ports association; two representatives selected by the association of Washington businesses, one of whom shall be from a high-growth area and one of whom shall be from a low or no-growth area; one representative of private property owners selected by a recognized private property owner organization; and one representative selected by a recognized agricultural organization. The chair shall be elected by the committee members from the nonstate agency representatives on the committee. The department, after consultation with the committee, shall establish a schedule for completion of tasks assigned to the committee under this act. The committee shall:

(a) Conduct a study as to effects, desirability, and compatibility of applying this chapter to the wetlands currently regulated under the shoreline management act. This study shall look in depth at the following issues: Single permit requirement, uniform and consistent standards, clear appeal process, consistency in application and procedure, and uses that are not required to obtain a permit;

(b) Examine nonregulatory methods including but not limited to preservation, conservation easements, restoration, tax incentives, technical assistance, regional planning, 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;

(c) Develop proposed rules relating to buffer sizes and restrictions on use of buffer areas, criteria for wetland rating system categories, and regulations on mitigation;

(d) Make program recommendations;

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

(f) Report to the legislature by December 15, 1990, on the recommendations and funding needs regarding (a) of this subsection and of the nonregulatory methods report.

(3) This section shall expire on March 1, 1991.

NEW SECTION. Sec. 18. No provision of this chapter shall be construed or enforced so as to result in the net loss of acreage used for agricultural purposes in high-growth areas as defined in this chapter.

NEW SECTION. Sec. 19. SHORT TITLE. This chapter shall be known and cited as the wetlands management act.

NEW SECTION. Sec. 20. (1) From the appropriation made to the department for the implementation of this chapter and from other such funds the department deems appropriate, funds shall be allocated to local governments for the justifiable costs of developing their wetlands programs and for conducting inventories, provided that a local government may agree to supplement such funds by the utilization of the local government's own resources for these purposes. Any costs shall be described and justified in writing by the local government.

(2) Failure to provide these moneys shall be justification for a request by the local government to extend the deadline for program development established in section 3(5) of this act.

NEW SECTION. Sec. 21. 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. 22. Section 17 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.

NEW SECTION. Sec. 23. CAPTIONS. Captions as used in this act do not constitute any part of the law.

NEW SECTION. Sec. 24. Sections 1 through 14, 18 through 21, and 23 of this act shall constitute a new chapter in Title 90 RCW.