5327-S AMH NR H3065

5327-S AMH NR H3065.2

SSB 5327 - H COMM AMD ADOPTED 4-9-97

By Committee on Natural Resources

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. In an effort to increase the amount of habitat available for fish and wildlife, the legislature finds that it is desirable for the department of fish and wildlife and other interested parties to work closely with private landowners to achieve habitat enhancements. In some instances, private landowners avoid enhancing habitat because of a concern that the presence of fish or wildlife may make future land management more difficult. It is the intent of this act to provide a mechanism that facilitates habitat development while avoiding an adverse impact on the landowner at a later date.

NEW SECTION. Sec. 2. (1) The department of fish and wildlife shall initiate a habitat incentives program in two phases. In creating this program, the department shall make use of and complement other study efforts underway relating to habitat protection and enhancement, including the department's own review of the hydraulic project approval process, the forestry module under development for the forest practices board dealing with practices within riparian areas, and the study on permitting requirements by the regional fisheries enhancement groups called for in chapter . . . (Second Substitute Senate Bill No. 5886), Laws of 1997.

(2) In phase one, the department of fish and wildlife shall work with affected federally recognized Indian tribes, landowners, the regional fisheries enhancement groups, the department of natural resources, and other interested parties to identify appropriate criteria and other factors necessary for implementation of the habitat incentives program. The department in concert with the interested parties shall identify at least the following elements for implementation of the program:

(a) The factors and the approach that the department should use in evaluating and weighing the benefits and concurrent risks of entering into a habitat incentives agreement with a landowner;

(b) The approach to be used in assigning responsibilities for implementation of the agreement to the landowner and to the department;

(c) Assignment of responsibility for documentation of the conditions on a landowner's property prior to the department's entering into a habitat incentives agreement;

(d) The process to be used when a landowner who has entered into a habitat incentives agreement applies for hydraulic project approval during the term of the agreement;

(e) The process to be used to monitor and evaluate whether actions taken as a part of the agreement actually enhance habitat for the target species and to amend the agreement if the existing agreement is not enhancing habitat;

(f) The conditions under which the department and the landowner may terminate the agreement and the remedies if either party breaches the terms of the agreement;

(g) The means for ensuring that the department is notified if the property covered by the agreement is sold or otherwise transferred into other ownership;

(h) The process to be used for reaching concurrence between the landowner, the department, the department of natural resources, and affected federally recognized Indian tribes; and

(i) The process to be used in prioritizing proposed agreements if the requests for agreements exceed the funding available for entering into and implementing such agreements.

The department and the interested parties may identify and propose solutions to other issues necessary in order to implement the habitat incentives program. The department and the interested parties shall report to the legislature on their findings as well as on any other recommendations for implementation and funding for the habitat incentives program by December 1, 1997.

NEW SECTION. Sec. 3. A new section is added to chapter 77.12 RCW to read as follows:

(1) Beginning in January 1998, the department shall implement a habitat incentives program based on the recommendations of federally recognized Indian tribes, landowners, the regional fisheries enhancement groups, the department of natural resources, and other interested parties. The program shall allow a private landowner to enter into an agreement with the department to enhance habitat on the landowner's property for food fish, game fish, or other wildlife species. In exchange, the landowner shall receive more state regulatory certainty with regard to future applications for hydraulic project approval on the property covered by the agreement. The overall goal of the program is to provide a mechanism that facilitates habitat development on private property while avoiding an adverse state regulatory impact to the landowner at some future date. A single agreement between the department and a landowner may encompass up to one thousand acres. A landowner may enter into multiple agreements with the department, provided that the total acreage covered by such agreements with a single landowner does not exceed ten thousand acres. The department is not obligated to enter into an agreement unless the department finds that the agreement is in the best interest of protecting fish or wildlife species or habitat.

(2) A habitat enhancement agreement shall be in writing and shall contain at least the following: A description of the property covered by the agreement, an expiration date, a description of the condition of the property prior to the implementation of the agreement, and other information needed by the landowner and the department for future reference and decisions.

(3) As part of the agreement, the department may stipulate the factors that will be considered when the department evaluates a landowner's application for hydraulic project approval under RCW 75.20.100 or 75.20.103 on property covered by the agreement. The department's identification of these evaluation factors shall be in concurrence with the department of natural resources and affected federally recognized Indian tribes. In general, future decisions related to the issuance, conditioning, or denial of hydraulic project approval shall be based on the conditions present on the landowner's property at the time of the agreement, unless all parties agree otherwise.

(4) The agreement is binding on and may be used by only the landowner who entered into the agreement with the department. The agreement shall not be appurtenant with the land. However, if a new landowner chooses to maintain the habitat enhancement efforts on the property, the new landowner and the department may jointly choose to retain the agreement on the property.

(5) If, during the course of the agreement, the landowner or the department must alter some terms of the agreement in order to comply with federal laws or regulations, the remaining terms of the agreement shall continue to remain binding on the parties.

(6) If the department receives multiple requests for agreements with private landowners under the habitat incentives program, the department shall prioritize these requests and shall enter into as many agreements as possible within available budgetary resources.

NEW SECTION. Sec. 4. A new section is added to chapter 75.20 RCW to read as follows:

When a private landowner is applying for hydraulic project approval under this chapter and that landowner has entered into a habitat incentives agreement with the department as provided in section 3 of this act, the department shall comply with the terms of that agreement when evaluating the request for hydraulic project approval.

NEW SECTION. Sec. 5. The department of fish and wildlife and the department of natural resources, in conjunction with the timber-fish-wildlife cooperators, shall investigate the feasibility of providing private landowners with more state level regulatory certainty with regard to forest practices regulations in exchange for a landowner's enhancement of habitat for fish or wildlife on the landowner's property. The agencies shall focus their efforts on possible agreements with landowners covering not more than one thousand acres per agreement, but the agencies shall consider the possibility of multiple agreements with a single landowner, not to exceed a total of ten thousand acres per landowner. The agencies shall evaluate the possibility of including provisions relating to forest practices regulations into the habitat incentives program being developed under this act. The agencies shall report to the legislature by December 1, 1997, the same time frame as the phase one report from the department of fish and wildlife. If the agencies and other interested parties find it expedient to do so, the studies in this section and in section 2 of this act may be combined into one effort.

NEW SECTION. Sec. 6. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1997, in the omnibus appropriations act, this act is null and void."

Correct the title.