BP BHEAD INT S [atlas:bill]

AN ACT Relating to dairy waste; amending RCW 90.64.005, 90.64.010, 90.64.030, 90.64.050, 90.64.060, 90.64.070, and 90.64.080; adding new sections to chapter 90.64 RCW; and repealing RCW 90.64.090.

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

Sec. 1. RCW 90.64.005 and 1993 c 221 s 1 are each amended to read as follows:

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 ((~~[with]~~)) with 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.

It is also the intent of this chapter to establish a credible inspection and technical assistance program for dairy farms to address the discharge of pollutants to surface and ground waters of the state that will lead to water quality compliance by the industry. A further purpose is to create a balanced program involving technical assistance, regulation, and enforcement with coordination and oversight of the program by a committee composed of industry, agency, and other representatives. Additionally, the legislature intends to simplify current complex coordination procedures between the department, the conservation commission, and conservation districts.

Sec. 2. RCW 90.64.010 and 1993 c 221 s 2 are each amended to read as follows:

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 RCW 90.64.030 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 that have been, are, or will be stabled or 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) "Dairy farm" means any farm that is a concentrated dairy animal feeding operation or a dairy animal feeding operation.

(6) "Dairy waste inspection team" means one or more representatives of the department and a local conservation district.

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

((~~(6)~~)) (8) "Director" means the director of the department of ecology, or his or her designee.

(9) "Major violation" means a noncompliance with one or more elements of a farm plan that causes a discharge of one or more pollutants into waters of the state or creates an imminent threat of a discharge.

(10) "Minor violation" means a failure to comply with any provision of this chapter that does not constitute a major violation.

NEW SECTION. Sec. 3. (1) The dairy waste inspection team shall conduct a regular inspection program of all dairy farms to determine their status implementing dairy animal waste management plans and compliance with wastewater discharge permit, other water pollution control requirements under the federal clean water act and chapter 90.48 RCW, the state water pollution control act, and this chapter.

(2) The dairy farm inspection program conducted by the dairy waste inspection team shall include the following components:

(a) Regular and systematic inspections of all dairy farms as provided in subsection (3) of this section and section 11(3)(h) of this act;

(b) Conducting dairy farm inspections in response to water pollution complaints received by the department; and

(c) Conducting inspections of dairy farms located in watersheds containing impaired waterbody segments formally listed and approved by the federal environmental protection agency under section 303(d) of the federal water pollution control act as amended, Title 33 U.S.C. Sec. 1251 et seq.

(3) A dairy farm shall be inspected a minimum of once every two years. Dairy farms that are determined to be an actual or likely source of water quality degradation shall receive more frequent inspections.

(4) A dairy farm inspected by the dairy waste inspection team that is fully implementing a dairy animal waste management plan meeting federal natural resources conservation service technical standards and specifications and is not directly discharging pollutants to waters of the state shall not be scheduled for another inspection for twenty-four months unless a complaint is received by the dairy waste inspection team.

Sec. 4. RCW 90.64.030 and 1993 c 221 s 4 are each amended to read as follows:

((~~Upon receiving a complaint or upon its own determination that a dairy animal feeding operation is a likely source of water quality degradation,~~)) The ((~~department~~)) dairy waste inspection team may investigate a dairy animal feeding operation to determine whether the operation is discharging directly pollutants or recently has discharged directly pollutants into surface or ground waters of the state under the inspection program in section 3 of this act. The ((~~department~~)) dairy waste inspection team 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, photographs, or other pertinent information 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. (1) Upon determining that any dairy animal feeding operation is a concentrated dairy animal feeding operation requiring permit coverage, the department shall notify the operator, and landowner if different, that technical assistance is available from a local conservation district.

(2) Timelines to achieve compliance shall be administered by the department through waste discharge permits under RCW 90.64.020 and authorities under chapter 90.48 RCW. Farms shall be provided six months to develop a dairy animal waste management plan and an additional eighteen months to fully implement the plan.

Sec. 6. RCW 90.64.050 and 1993 c 221 s 6 are each amended to read as follows:

(1) The department has the following duties:

(a) Identify existing or potential water quality problems resulting from dairy farms through implementation of the inspection program in section 3 of this act;

(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~~)) this chapter. The department shall maintain the lead enforcement responsibility;

(d) Administer and enforce national pollutants 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~~)) Participate on the dairy waste program coordination and oversight committee;

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

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

(h) Provide to the commission and dairy waste program coordination and oversight committee an annual report of dairy waste ((~~pollution~~)) inspection, permitting, and enforcement activities.

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

Sec. 7. RCW 90.64.060 and 1993 c 221 s 7 are each amended to read as follows:

(1) If the ((~~department~~)) dairy waste inspection team 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 and such correction is maintained, the department shall cease pursuit of the complaint.

(2) If the ((~~department~~)) dairy waste inspection team 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.))

Sec. 8. RCW 90.64.070 and 1993 c 221 s 8 are each amended to read as follows:

(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~~)) Provide technical assistance to the department in identifying existing or potential water quality problems resulting from dairy farms through implementation of the inspection program in section 3 of this act;

(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~~)) Forward complaints regarding discharge of pollutants to the department;

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

(d) ((~~Adopt and carry out a compliance option from level 1, level 2, level 3, or level 4~~)) Provide technical assistance in developing and implementing a dairy waste management farm plan.

(2) The district's capability to carry out its responsibilities ((~~in the four levels of compliance~~)) under this chapter is contingent upon the availability of funding and resources to implement a dairy waste management program.

Sec. 9. RCW 90.64.080 and 1993 c 221 s 9 are each amended to read as follows:

(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~~)) dairy waste program coordination and oversight 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~~)) Serve as chair to the dairy waste program coordination and oversight committee;

(h) Work with the department to provide communication outreach to representatives of agricultural and environmental organizations to receive feedback 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 dairy waste management program.

NEW SECTION. Sec. 10. By September 30, 1997, the department in consultation with the dairy waste program coordination and oversight committee shall develop and maintain a data base to account for the implementation of the inspection program identified in section 3 of this act. The data base shall track inspection, regulatory and enforcement actions, and industry implementation of dairy animal waste management plans. A summary of the data base information shall be provided each year to the dairy waste program coordination and oversight committee members.

NEW SECTION. Sec. 11. (1) A dairy waste program coordination and oversight committee is established. The committee shall be chaired by the conservation commission. The purpose of the committee is to provide accountable direction and oversight of the dairy waste inspection program.

(2) The committee shall be composed of representatives of the department, the dairy federation, the conservation commission, conservation districts, the federal natural resources conservation service, the federal environmental protection agency, environmental groups, the shellfish industry, and the department of health.

(3) The committee shall perform the following functions:

(a) Meet at least three times per calendar year;

(b) Disseminate information as needed;

(c) Maintain meeting minutes and account for the resolution of issues jointly identified by the committee chairs as needing to be addressed;

(d) Review the annual data base report provided by the department under section 10 of this act;

(e) Act as a forum to hear suggestions from any interested parties, including dairy farmers, regarding implementation of the dairy waste program;

(f) Monitor the development and use of the dairy animal waste planning guidelines adopted by the conservation commission under section 13 of this act;

(g) Create and recommend standardized dairy farm waste facility inspection procedures and a reporting format to be used by the department; and

(h) Develop performance-based criteria to determine the frequency of inspections initiated under section 3 of this act.

(4) The dairy waste program coordination and oversight committee does not replace or infringe upon the authority, duties, or responsibilities of the pollution control hearings board.

NEW SECTION. Sec. 12. (1) The conservation commission shall establish four dairy waste technical assistance teams by January 1, 1998. The teams shall be geographically located throughout the state to maximize regional availability to dairy farmers.

(2) Each team shall be capable of providing the full range of engineering design and nutrient management technical assistance necessary to assist dairy farmers in developing and implementing dairy animal waste management plans containing natural resources conservation service technical standards and specifications.

(3) The teams shall be funded through June 30, 2001, with funds from the clean water account provided to the conservation commission to address nonpoint sources of water pollution.

NEW SECTION. Sec. 13. (1) By January 1, 1998, the conservation commission shall develop, adopt, and distribute to the dairy waste teams and conservation districts guidelines for the development of dairy animal waste management plans.

(2) The commission shall form an advisory committee to assist developing these guidelines. The advisory committee may be composed of representatives from the federal environmental protection agency, federal natural resources conservation service, the department of ecology, Washington State University cooperative extension local conservation districts, and the Washington dairy federation.

(3) The guidelines shall be clearly written and shall be based on scientifically and economically sound best management practices.

(4) Beginning January 1, 1998, the dairy waste technical assistance teams established under section 12 of this act and conservation districts shall follow these guidelines when preparing dairy animal waste management plans for dairy farms.

NEW SECTION. Sec. 14. Dairy waste teams and conservation districts shall provide a complete copy of any dairy animal waste management plan prepared after the effective date of this chapter to the department within fourteen days of completion.

NEW SECTION. Sec. 15. The department shall provide copies of all final dairy farm inspection reports and documentation of all formal regulatory and enforcement actions taken by the department to the local conservation district within fourteen days.

NEW SECTION. Sec. 16. (1) The following penalty schedule is established for major violations of this chapter:

(a) The first major violation shall result in a monetary penalty of five cents per pound of milk produced on the dairy farm in twenty-four hours. The monetary penalty may be returned to the dairy producer if the violation is corrected within two weeks of department notification;

(b) The second major violation shall result in a monetary penalty of ten cents per pound of milk produced in forty-eight hours. The monetary penalty shall be deposited into the dairy waste management account created in section 17 of this act; and

(c) The third, and any subsequent, major violation shall result in loss of a grade A license for a period of three months or until full compliance is achieved, whichever is greater.

(2) A dairy farm that has not had a violation in twenty-four months is considered to not have incurred a major violation under this chapter.

(3) Three minor violations during any twelve-month period constitute one major violation.

(4) The department, after consulting with other members of the dairy waste inspection team, may enforce any appropriate provision of a dairy animal waste management plan.

NEW SECTION. Sec. 17. The dairy waste management account is created in the custody of the state treasurer. All receipts from monetary penalties under section 16 of this act must be deposited into the account. Expenditures from the account may be used only for the commission to provide grants to local conservation districts for the sole purpose of assisting dairy farms to develop and fully implement dairy animal waste management plans. Only the director of community, trade, and economic development or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION. Sec. 18. RCW 90.64.090 and 1993 c 221 s 10 are each repealed.

NEW SECTION. Sec. 19. Sections 3, 5, and 10 through 17 of this act are each added to chapter 90.64 RCW.