WSR 97-20-050

PROPOSED RULES

DEPARTMENT OF ECOLOGY

[Order 97-31--Filed September 24, 1997, 11:40 a.m.]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: Uses and limitations of centennial clean water funds.

Purpose: Implement certain provisions of RCW 70.146.70 [70.146.070] that were changed in 1997.

Other Identifying Information: Related to chapter 36.70A RCW, the Growth Management Act.

Statutory Authority for Adoption: RCW 70.146.70 [70.146.070].

Statute Being Implemented: RCW 70.146.70 [70.146.070].

Summary: The Growth Management Act was amended in 1997 to allow local governments to accept water quality facilities grants from ecology even while they are out of compliance with the Growth Management Act. To do so, however, they must be able to document a "public health need" or "severe environmental degradation." The proposed rule defines these terms and provides a method for ecology to determine whether these situations truly exist and whether the proposed projects will address the situation.

Name of Proponent: Department of Ecology, governmental.

Explanation of Rule, its Purpose, and Anticipated Effects: The Growth Management Act was amended in 1997 to allow local governments to accept water quality facilities grants from ecology even while they are out of compliance with the Growth Management Act. To do so, however, they must be able to document a "public health need" or "severe environmental degradation." The proposed rule defines these terms and provides a method for ecology to determine whether these situations truly exist and whether the proposed projects will address the situation. Public health need is defined, and a procedure to determine a public health need is outlined. Determination is shown through a letter of determination signed by the secretary of the state Department of Health. Substantial environmental degradation is also defined, and a similar procedure (a letter from the director of the state Department of Ecology) is outlined.

The purpose of the rule is to implement the changed law. Anticipated effects are that certain water quality projects proposed by local governments, for which money has been offered by ecology, will be able to proceed.

Proposal Changes the Following Existing Rules: An emergency rule was signed in May 1997. Minor changes to wording are proposed.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Rule affects only local governments.

RCW 34.05.328 does not apply to this rule adoption. This is not a significant legislative rule.

Hearing Location: Yakima, Spokane, and Lacey, on November 5, 6, and 7, 1997, at 2:00 p.m.

Assistance for Persons with Disabilities: Contact Tim Hilliard at (360) 407-6429 by October 28, 1997, TDD (360) 407-6006.

Submit Written Comments to: Timothy Hilliard, P.O. Box 47600, Olympia, WA 98504, FAX (360) 407-6426, by November 14, 1997.

Date of Intended Adoption: December 1, 1997.

September 23, 1997

Daniel J. Silver

Deputy Director

WAC 173-95A-010 Purpose and scope.

WAC 173-95A-020 Definitions.

WAC 173-95A-030 Documenting a public health need.

WAC 173-95A-040 Documenting a substantial environmental degradation.

WAC 173-95A-050 Awarding grant and loan funds.

NEW SECTION

WAC 173-95A-010 Purpose and scope. This chapter is intended to address critical or emergent public health needs or environmental problems in jurisdictions that are not in compliance with the Growth Management Act. It implements an exception to the prohibition of counties, cities, and towns that are not in compliance with the Growth Management Act (chapter 36.70A RCW) from receiving grant or loan funds for water pollution control facilities. The exception is provided in limited circumstances, where necessary to address a public health need or substantial environmental degradation.

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NEW SECTION

WAC 173-95A-020 Definitions. (1) "Compliance with the Growth Management Act" means that (a) a county, city, or town that is required or chooses to plan under RCW 36.70A.040 has adopted a comprehensive plan and development regulations in conformance with the requirements of chapter 36.70A RCW, after it is required that the comprehensive plan and development regulations be adopted; and (b) the county, city, or town has not been found out of compliance by a growth management hearings board; or (c) a growth management hearings board has found a county, city, or town in compliance with the requirements of chapter 36.70A RCW, after previously finding the county, city, or town was not in compliance.

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

(3) "Public health need" means that a situation exists where (a) there is a documented potential for: (i) Contaminating a source of drinking water; or (ii) failure of existing wastewater system or systems resulting in contamination being present on the surface of the ground in such quantities and locations as to create a potential for public contact; or (iii) contamination of a commercial or recreational shellfish bed as to create a critical public health risk associated with consumption of the shellfish; or (iv) contamination of surface water so as to create a critical public health risk associated with recreational use; and (b) the problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and (c) the problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

(4) "Substantial environmental degradation" means that (a) there is a situation causing real, documented, critical environmental contamination that (i) contributes to violations of the state's water quality standards; or (ii) interferes with beneficial uses of the waters of the state; and (b) the problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and (c) the problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

(5) "Water pollution control facility" or "facilities" means any facilities or systems for the control, collection, storage, treatment, disposal, or recycling of wastewater, including but not limited to sanitary sewage, storm water, residential, commercial, industrial, and agricultural wastes, which are causing water quality degradation due to concentrations of conventional, nonconventional, or toxic pollutants. Water pollution control facilities include all equipment, utilities, structures, real property, and interests in and improvements on real property necessary for or incidental to such purpose. Water pollution control facilities also include such facilities, equipment, and collection systems as are necessary to protect federally designated sole source aquifers.

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NEW SECTION

WAC 173-95A-030 Determining a public health need. For the purposes of this chapter, a determination of a public health need related to a grant or loan must be requested by the public official who signed the grant or loan application. The request needs to be in the form of a letter, with supporting documentation, to the secretary of the Washington state department of health. The secretary or his or her designee reviews the documentation and determines whether a public health need exists. A determination of a public health need must be documented in a letter signed by the secretary or his or her designee and addressed to the same public official.

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NEW SECTION

WAC 173-95A-040 Determining a substantial environmental degradation. For the purposes of this chapter, a determination of a substantial environmental degradation related to a grant or loan must be requested by the public official who signed the grant or loan application. The request needs to be in the form of a letter, with supporting documentation, to the director of the Department. The director or his or her designee reviews the documentation and determines whether a substantial environmental degradation exists. A determination of a substantial environmental degradation must be documented in a letter signed by the director or his or her designee and addressed to the same public official.

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NEW SECTION

WAC 173-95A-050 Awarding grant and loan funds. A county, city or town that has been offered a grant or loan for a water pollution control facility project may not receive grant or loan funds while the county, city, or town is not in compliance with the Growth Management Act unless:

(1) A letter of determination showing that a public health need exists has been provided by the Washington state department of health; or a letter of determination showing that a substantial environmental degradation exists has been provided by the Department; and

(2) The county, city or town has provided documentation to the Department that actions or measures are being implemented to address the public health need or substantial environmental degradation; and

(3) The Department has determined that the project is designed to address only the public health need or substantial environmental degradation described in the documentation, and does not address unrelated needs including but not limited to provisions for additional growth.