AN
ACT Relating to wetlands mitigation banking; adding a new chapter to Title 90
RCW; and creating new sections.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. (1)
The legislature finds that wetlands mitigation banks are an important tool for
providing compensatory mitigation for unavoidable impacts to wetlands. The
legislature further finds that the benefits of mitigation banks include: (a)
Maintenance of the ecological functioning of a watershed by consolidating
compensatory mitigation into a single large parcel rather than smaller
individual parcels; (b) increased potential for the establishment and long-term
management of successful mitigation by bringing together financial resources,
planning, and scientific expertise not practicable for many project-specific
mitigation proposals; (c) increased certainty over the success of mitigation
and reduction of temporal losses of wetlands since mitigation banks are typically
implemented and functioning in advance of project impacts; (d) potential
enhanced protection and preservation of the state's highest value and highest
functioning wetlands; (e) a reduction in permit processing times and increased
opportunity for more cost-effective compensatory mitigation for development
projects; and (f) the ability to provide compensatory mitigation in an
efficient, predictable, and economically and environmentally responsible
manner. Therefore, the legislature declares that it is the policy of the state
to authorize wetland mitigation banking.
(2)
The purpose of this chapter is to support the establishment of mitigation banks
by: (a) Authorizing state agencies and local governments, as well as private
entities, to achieve the goals of this chapter; and (b) providing a
predictable, efficient, regulatory framework, including timely review of
mitigation bank proposals. The legislature intends that, in the development
and adoption of rules for banks, the department establish and use a
collaborative process involving interested public and private entities.
NEW
SECTION. Sec. 2. This
chapter does not create any new authority for regulating wetlands or wetlands
banks beyond what is specifically provided for in this chapter. No authority
is granted to the department under this chapter to adopt rules or guidance that
apply to wetland projects other than banks under this chapter.
NEW
SECTION. Sec. 3. The
definitions in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1)
"Banking instrument" means the documentation of agency and bank
sponsor concurrence on the objectives and administration of the bank that
describes in detail the physical and legal characteristics of the bank,
including the service area, and how the bank will be established and operated.
(2)
"Bank sponsor" means any public or private entity responsible for
establishing and, in most circumstances, operating a bank.
(3)
"Credit" means a unit of trade representing the increase in the
ecological value of the site, as measured by acreage, functions, and/or values,
or by some other assessment method.
(4)
"Department" means the department of ecology.
(5)
"Wetlands mitigation bank" or "bank" means a site where
wetlands are restored, created, enhanced, or in exceptional circumstances,
preserved expressly for the purpose of providing compensatory mitigation in
advance of authorized impacts to similar resources.
(6)
"Mitigation" means sequentially avoiding impacts, minimizing impacts,
and compensating for remaining unavoidable impacts.
(7)
"Practicable" means available and capable of being done after taking
into consideration cost, existing technology, and logistics in light of overall
project purposes.
(8)
"Service area" means the designated geographic area in which a bank
can reasonably be expected to provide appropriate compensation for unavoidable
impacts to wetlands.
(9)
"Unavoidable" means adverse impacts that remain after all appropriate
and practicable avoidance and minimization have been achieved.
NEW
SECTION. Sec. 4.
Subject to the requirements of this chapter, the department, through a
collaborative process, shall adopt rules for:
(1)
Certification, operation, and monitoring of wetlands mitigation banks. The
rules shall include procedures to assure that:
(a)
Priority is given to banks providing for the restoration of degraded or former
wetlands;
(b)
Banks involving the creation and enhancement of wetlands are certified only
where there are adequate assurances of success and that the bank will result in
an overall environmental benefit; and
(c)
Banks involving the preservation of wetlands or associated uplands are
certified only when the preservation is in conjunction with the restoration,
enhancement, or creation of a wetland, or in other exceptional circumstances as
determined by the department consistent with this chapter;
(2)
Determination and release of credits from banks. Procedures regarding credits
shall authorize the use and sale of credits to offset adverse impacts and the
phased release of credits as different levels of the performance standards are
met;
(3)
Public involvement in the certification of banks, using existing statutory
authority;
(4)
Coordination of governmental agencies;
(5)
Establishment of criteria for determining service areas for each bank;
(6)
Performance standards; and
(7)
Long-term management, financial assurances, and remediation for certified
banks.
Before
adopting rules under this chapter, the department shall submit the proposed
rules to the appropriate standing committees of the legislature. By January
30, 1999, the department shall submit a report to the appropriate standing
committees of the legislature on its progress in developing rules under this
chapter.
NEW
SECTION. Sec. 5. (1)
The department may certify only those banks that meet the requirements of this
chapter. Certification shall be accomplished through a banking instrument.
The local jurisdiction in which the bank is located shall be signatory to the
banking instrument.
(2)
State agencies and local governments may approve use of credits from a bank for
any mitigation required under a permit issued or approved by that state agency
or local government to compensate for the proposed impacts of a specific public
or private project.
NEW
SECTION. Sec. 6. Prior
to authorizing use of credits from a bank as a means of mitigation under a
permit issued or approved by the department, the department must assure that
all appropriate and practicable steps have been undertaken to first avoid and
then minimize adverse impacts to wetlands. In determining appropriate steps to
avoid and minimize adverse impacts to wetlands, the department shall take into
consideration the functions and values of the wetland, including fish habitat,
ground water quality, and protection of adjacent properties. The department
may approve use of credits from a bank when:
(1)
The credits represent the creation, restoration, or enhancement of wetlands of
like kind and in close proximity when estuarine wetlands are being mitigated;
(2)
There is no practicable opportunity for on-site compensation; or
(3)
Use of credits from a bank is environmentally preferable to on-site
compensation.
NEW
SECTION. Sec. 7. The
interpretation of this chapter and rules adopted under this chapter must be
consistent with applicable federal guidance for the establishment, use, and
operation of wetlands mitigation banks as it existed on the effective date of
this section, or such subsequent date as may be provided by the department by
rule, consistent with the purposes of this chapter.
NEW
SECTION. Sec. 8. This
chapter applies to public and private mitigation banks.
NEW
SECTION. Sec. 9. 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. 10. The
director of the department of ecology may take the necessary steps to ensure
that this act is implemented on its effective date.
NEW
SECTION. Sec. 11. If
specific funding for the purposes of this act, referencing this act by bill or
chapter number, is not provided by June 30, 1998, in the omnibus appropriations
act, this act is null and void.
NEW
SECTION. Sec. 12.
Sections 1 through 9 of this act constitute a new chapter in Title 90 RCW.
