BP BHEAD INT S

AN ACT Relating to the regulation of dairy animal feeding operations; and adding a new chapter to Title 89 RCW.

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

NEW SECTION. Sec. 1. The legislature finds that there is a need to establish a clear and understandable process that provides for the proper and effective management of dairy waste that affects the quality of surface or ground waters in the state of Washington. The legislature finds that there is a need for a program that will provide a stable and predictable business climate upon which dairy farms may base future investment decisions.

The legislature finds that federal regulations require a permit program for dairies over seven hundred head of mature cows and, other specified dairy farms that directly discharge into waters or are otherwise significant contributors of pollution. The legislature finds that significant work has been ongoing over a period of time and that the intent of this chapter is to take the consensus that has been developed and place it into statutory form.

It is also the intent of this chapter to recognize the existing working relationships between conservation districts, the conservation commission, and the department of ecology in protecting water quality of the state. A further purpose of this chapter is to provide statutory recognition of the coordination of the functions of conservation districts, the conservation commission, and the department of ecology pertaining to development of dairy waste management plans for the protection of water quality.

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

(1) "Conservation commission" or "commission" means the conservation commission under chapter 89.08 RCW.

(2) "Conservation districts" or "district" means a subdivision of state government organized under chapter 89.08 RCW.

(3) "Concentrated dairy animal feeding operation" means a dairy animal feeding operation subject to regulation under this chapter which the director designates under section 4 of this act or meets the following criteria:

(a) Has more than seven hundred mature dairy cows, whether milked or dry cows, that are confined; or

(b) Has more than two hundred head of mature dairy cattle, whether milked or dry cows, that are confined and either:

(i) From which pollutants are discharged into navigable waters through a manmade ditch, flushing system, or other similar manmade device; or

(ii) From which pollutants are discharged directly into surface or ground waters of the state that originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

(4) "Dairy animal feeding operation" means a lot or facility where the following conditions are met;

(a) Dairy animals are confined and fed for a total of forty-five days or more in any twelve-month period; and

(b) Crops, vegetation forage growth, or postharvest residues are not sustained in the normal growing season over any portion of the lot or facility. Two or more dairy animal feeding operations under common ownership are considered, for the purposes of this chapter, to be a single dairy animal feeding operation if they adjoin each other or if they use a common area for land application of wastes.

(5) "Department" means the department of ecology under chapter 43.21A RCW.

NEW SECTION. Sec. 3. (1) The director of the department of ecology may designate any dairy animal feeding operation as a concentrated dairy animal feeding operation upon determining that it is a significant contributor of pollution to the surface or ground waters of the state. In making this designation the director shall consider the following factors:

(a) The size of the animal feeding operation and the amount of wastes reaching waters of the state;

(b) The location of the animal feeding operation relative to waters of the state;

(d) The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste waters into the waters of the state; and

(e) Other relevant factors as established by the department by rule.

(2) A notice of intent to apply for a permit shall not be required from a concentrated animal feeding operation designated under this section until the director has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program.

NEW SECTION. Sec. 4. Upon receiving a complaint or upon its own determination that a concentrated dairy animal feeding operation is a likely source of water quality degradation, the department may investigate a concentrated dairy animal feeding operation to determine whether the operation is discharging directly pollution or recently has discharged directly pollution into surface or ground waters of the state. The department shall investigate a written complaint filed with the department within ten days and shall make a written report of its findings including the results of any water quality measurements, photographs, or other pertinent information. A copy of the findings shall be provided upon request to the dairy animal feeding operation.

Those dairy animal feeding operations that are determined to be a significant contributor of pollution based on actual water quality tests, if immediate corrective actions are not possible, shall be designated as a concentrated dairy animal feeding operation and shall be subject to the provisions of this chapter.

NEW SECTION. Sec. 5. Determinations made by the department as to whether a dairy animal feeding operation is discharging directly or whether a dairy animal feeding operation is a significant contributor of pollution to surface or ground waters of the state may be appealed to the pollution control hearings board in accordance with the provisions of chapter 43.21B RCW.

NEW SECTION. Sec. 6. (1) The department has the following duties:

(a) Identify existing or potential water quality problems resulting from dairy farms;

(b) Receive, process, and verify complaints concerning discharge of pollutants from all dairy farms regardless of size;

(c) Determine if a dairy-related water quality problem requires immediate corrective action under the Washington state water pollution control laws, chapter 90.48 RCW, the Washington state water quality standards adopted under chapter 90.48 RCW, or other authorities. The department shall maintain the lead enforcement responsibility;

(d) Administer and enforce national pollution discharge elimination system permits for operators of concentrated dairy animal feeding operations, where required by federal regulations, and administer state laws;

(e) Appoint representatives, including dairy industry representatives, to participate in the compliance review committee that will annually review and update policy and disseminate information as needed;

(f) Encourage communication between local department personnel and the appropriate conservation district personnel;

(g) Encourage the use of federal soil conservation service standards and specifications in designing best management practices for dairy waste management plans to protect water quality;

(h) Provide to the commission an annual report of dairy waste pollution enforcement activities.

(2) The department may not delegate its responsibilities in enforcement.

NEW SECTION. Sec. 7. (1) If the department determines that the operator of a dairy animal feeding operation has the means to correct a water quality problem in a manner that will prevent future contamination and does so promptly, the department shall cease pursuit of the complaint.

(2) If the department determines that an unresolved water quality problem from a dairy animal feeding operation requires immediate corrective action, the department shall notify the operator and the district in which the problem is located.

(3) If immediate action is not necessary by the department, the handling of complaints will differ depending on the amount of information available and the compliance option selected by the conservation district involved.

(a) When the name and address of the party against whom the complaint was registered are known:

(i) Districts operating at levels 1 and 2 will receive a copy of complaint information, and compliance letter if one was sent out.

(ii) Districts operating at levels 3 and 4 will receive a copy of complaint information and the letter sent by the department to the operator informing the operator of the complaint and providing the operator with the opportunity to work with the conservation district on a voluntary basis.

(b) The department and the conservation district will work together at the local level to resolve complaints when the name and address of the party against whom the complaint was registered are unknown.

NEW SECTION. Sec. 8. (1) The conservation district has the following duties:

(a) Adopt and annually update the water quality section in the conservation district dairy waste management plan;

(b) As part of the district annual report, include a water quality progress report on dairy waste management activities conducted that are related to this chapter;

(d) Adopt and carry out a compliance option from level 1, level 2, level 3, or level 4.

(2) The district's capability to carry out its responsibilities in the four levels of compliance is contingent upon the availability of funding and resources to implement a water quality program.

NEW SECTION. Sec. 9. (1) The conservation commission has the following duties:

(a) Forward to the department the dairy waste management plan progress reports;

(b) Provide assistance as may be appropriate to the conservation districts in the discharge of their responsibilities as management agencies in dairy waste management program implementation;

(c) Provide coordination for conservation district programs at the state level through special arrangements with appropriate federal and state agencies;

(d) Inform conservation districts of activities and experiences of other conservation districts relative to agricultural water quality protection, and facilitate an interchange of advice, experience, and cooperation between the districts;

(e) Encourage communication between the conservation district personnel and local department personnel;

(f) Appoint conservation district representatives to serve on the compliance review committee with advice of the Washington association of conservation districts;

(g) Appoint a commission representative to participate on the compliance review committee that will annually review and update policy and disseminate information as needed;

(h) Work with the department to provide communication outreach to representatives of agricultural and environmental organizations to receive feed back on implementation of this chapter.

(2) The commission's capability to carry out its responsibilities under this chapter is contingent upon the availability of funding and resources to implement a water quality program.

NEW SECTION. Sec. 10. Conservation districts shall adopt one of the following compliance levels:

(1) Level 1 - Information/education/technical assistance.

The conservation district will serve as a local source of information on dairy waste management plan implementation programs. The conservation district will promote plans and efforts to improve water quality and explain the benefits of participating in available implementation plans through news releases and other media for the general public; programs for schools; presentations to groups and civic organizations; workshops; training sessions; or other appropriate means. The conservation district will provide technical assistance upon request.

The department will respond to complaints that involve water quality problems caused by dairy animal feeding operations. The department will work with the operator to bring the operation into compliance with federal statutes, federal regulations, and applicable state laws. If immediate action is deemed necessary, the department will pursue the appropriate actions that may include enforcement against the responsible parties. The department will advise the operator of the information and technical assistance available through the conservation district. The department will notify the conservation district of the operator's need for information or technical assistance.

(2) Level 2 - Information/education, problem assessment, and handling complaints.

The conservation district will carry out programs described in level 1. In addition, the conservation district will inventory dairy waste related water quality problems defined in the water quality section of its annual plan. The conservation district will prioritize problems and work to apply voluntary solutions to the highest priority problems within available resources utilizing information/education, technical assistance, and incentives. Response to complaint - The conservation district will make an appointment for an on-site contact with the alleged violator within ten working days and determine if the operator desires to work with the conservation district. If the operator wishes conservation district assistance, within six months the conservation district will develop a plan with the individual operator which includes a schedule for application of best management practices. The operator will have eighteen months, or by agreement, an approved schedule with an alternative time period to implement the plan. If hardships occur, the operator may request an extension of the implementation schedule subject to concurrence of the department.

The conservation district in responding to complaints will report progress, or the need for further department technical expertise, to the individual involved and the department. A copy of the plan will be made available to the department. If the district offers assistance and the individual involved refuses to cooperate or ceases to work with the conservation district, the district will notify the department.

The conservation district will refer all alleged water quality violations, or individuals who wish to make a complaint to the department.

The department will investigate and seek resolution of all complaints that appear to need immediate action and refer all other complaints concerning dairy animal feeding operations to the appropriate conservation district. The department will keep a record of those complaints. When a referral is made by a conservation district, due to a continuing unresolved water quality problem, the department will take appropriate action and advise the conservation district of the action taken.

(3) Level 3 - Information/education, problem assessment, handling complaints, and assisting in compliance.

The conservation district will carry out programs described in levels 1 and 2. In addition, the conservation district will actively follow up those problems and complaints deemed highest priority by the conservation district within sixty days after the initial contact. The complaint referral follow-up will include:

(a) Meet with the owner/operator;

(b) Make an on-site assessment of the nature and extent of the problem, if so desired by the owner/operator;

(d) Assist the owner/operator in the development of a dairy waste management plan within six months. Implementation is to be completed within eighteen months, or by agreement and approved schedule, with an alternative time period to implement the plan. If hardships occur, the operator may request an extension of the planning or implementation schedule with concurrence of the department;

(e) Provide such technical assistance as is necessary and available during plan implementation;

(f) Monitor plan implementation;

(g) Notify the department in the event that the owner/operator either refuses to cooperate in the development of a dairy waste management plan that will correct the problems identified during the on-site assessment, or fails to implement the plan within the designated time period;

(h) By June 30 of each year, submit a formal summary of progress on alleged water quality violations referred to the conservation district by the department.

The department will investigate and seek resolution of all complaints that appear to need immediate action.

The department will pursue all activities addressed under level 2. Except that on those sites where the conservation district is making progress on water quality problems caused from dairy animal feeding operations and is reporting the same to the department, the department will hold any related enforcement actions in abeyance until the problem is solved, or the operator refuses to cooperate further. The department shall continue to pursue any immediate action where required.

(4) Level 4 - Compliance.

The conservation district will carry out programs described in levels 1 through 3. In addition, the conservation district will provide information and direct support for resolving water quality actions which may be filed by the department pursuant to its statutory authority.

Information and support include the following:

(a) A field site tour to provide information and attempt to resolve the issues;

(b) Provision for access to public information in a conservation district's files, and if appropriate, in-house documents such as field notes, photographs, and in-house memoranda. Access is subject to applicable laws and regulations;

(d) Assistance and attendance, if appropriate, at negotiation sessions with responsible parties;

(e) Affidavits or testimony necessary to document the case.

The department will pursue all activities as addressed in level 3, except where the conservation district has been involved, the department will utilize the information and support offered by the conservation district to resolve the matter.

NEW SECTION. Sec. 11. A party acting under this chapter is not liable for another party's actions under this chapter.

NEW SECTION. Sec. 12. Sections 1 through 11 of this act shall constitute a new chapter in Title 89 RCW.