AN
ACT Relating to facilitating the review and approval of fish habitat
enhancement projects; amending RCW 90.58.147, 35.63.230, 35A.63.250, 36.70.992,
36.70A.460, 43.21C.0382, and 89.08.470; adding a new section to chapter 75.20
RCW; adding a new section to chapter 36.70 RCW; adding a new section to chapter
35.21 RCW; adding a new section to chapter 35A.21 RCW; adding a new section to
chapter 19.27 RCW; adding a new section to chapter 75.50 RCW; creating new
sections; and declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that fish habitat enhancement projects play a key role in the
state's salmon and steelhead recovery efforts. The legislature finds that
there are over two thousand barriers to fish passage at road crossings
throughout the state, blocking fish access to as much as three thousand miles
of freshwater spawning and rearing habitat. The legislature further finds that
removal of these barriers and completion of other fish habitat enhancement
projects should be done in a cost-effective manner, which includes providing
technical assistance and training to people who will undertake projects such as
removal of barriers to salmon passage and minimizing the expense and delays of
various permitting processes. The purpose of this act is to take immediate
action to facilitate the review and approval of fish habitat enhancement
projects, to encourage efforts that will continue to improve the process in the
future, to address known fish passage barriers immediately, and to develop over
time a comprehensive system to inventory and prioritize barriers on a
state-wide basis.
NEW
SECTION. Sec. 2. The
department of ecology permit assistant center shall immediately modify the
joint aquatic resource permit application form to incorporate the permit
process established in section 3 of this act.
NEW
SECTION. Sec. 3. A
new section is added to chapter 75.20 RCW to read as follows:
(1)
In order to receive the permit review and approval process created in this
section, a fish habitat enhancement project must meet the criteria under (a)
and (b) of this subsection:
(a)
A fish habitat enhancement project must be a project to accomplish one or more
of the following tasks:
(i)
Elimination of human-made fish passage barriers, including culvert repair and
replacement;
(ii)
Restoration of an eroded or unstable stream bank employing the principle of
bioengineering, including limited use of rock as a stabilization only at the
toe of the bank, and with primary emphasis on using native vegetation to
control the erosive forces of flowing water; or
(iii)
Placement of woody debris or other instream structures that benefit naturally
reproducing fish stocks.
The
department shall develop size or scale threshold tests to determine if projects
accomplishing any of these tasks should be evaluated under the process created
in this section or under other project review and approval processes. A
project proposal shall not be reviewed under the process created in this
section if the department determines that the scale of the project raises
concerns regarding public health and safety; and
(b)
A fish habitat enhancement project must be approved in one of the following
ways:
(i)
By the department pursuant to chapter 75.50 or 75.52 RCW;
(ii)
By the sponsor of a watershed restoration plan as provided in chapter 89.08
RCW;
(iii)
By the department as a department-sponsored fish habitat enhancement or
restoration project;
(iv)
Through the review and approval process for the jobs for the environment
program;
(v)
Through the review and approval process for conservation district-sponsored
projects, where the project complies with design standards established by the
conservation commission through interagency agreement with the United States
fish and wildlife service and the natural resource conservation service;
(vi)
Through a formal grant program established by the legislature or the department
for fish habitat enhancement or restoration; and
(vii)
Through other formal review and approval processes established by the
legislature.
(2)
Fish habitat enhancement projects meeting the criteria of subsection (1) of
this section are expected to result in beneficial impacts to the environment.
Decisions pertaining to fish habitat enhancement projects meeting the criteria
of subsection (1) of this section and being reviewed and approved according to
the provisions of this section are not subject to the requirements of RCW
43.21C.030(2)(c).
(3)
Hydraulic project approval is required for projects that meet the criteria of
subsection (1) of this section and are being reviewed and approved under this
section. An applicant shall use a joint aquatic resource permit application
form developed by the department of ecology permit assistance center to apply
for approval under this chapter. On the same day, the applicant shall provide
copies of the completed application form to the department and to each
appropriate local government. Local governments shall accept the application
as notice of the proposed project. The department shall provide a fifteen-day
comment period during which it will receive comments regarding environmental
impacts. In no more than forty-five days, the department shall either issue
hydraulic project approval, with or without conditions, deny approval, or make
a determination that the review and approval process created by this section is
not appropriate for the proposed project. The department shall base this determination
on identification during the comment period of adverse impacts that cannot be
mitigated by hydraulic project approval. If the department determines that the
review and approval process created by this section is not appropriate for the
proposed project, the department shall notify the applicant and the appropriate
local governments of its determination. The applicant may reapply for approval
of the project under other review and approval processes.
Any
person aggrieved by the approval, denial, conditioning, or modification of
hydraulic project approval under this section may formally appeal the decision
to the hydraulic appeals board pursuant to the provisions of this chapter.
(4)
No local government may require permits or charge fees for fish habitat
enhancement projects that meet the criteria of subsection (1) of this section
and that are reviewed and approved according to the provisions of this section.
Sec.
4. RCW
90.58.147 and 1995 c 333 s 1 are each amended to read as follows:
(1)
A public or private project that is designed to improve fish or wildlife
habitat or fish passage shall be exempt from the substantial development permit
requirements of this chapter when all of the following apply:
(((1)))
(a) The project has been approved by the department of fish and
wildlife;
(((2)))
(b) The project has received hydraulic project approval by the
department of fish and wildlife pursuant to chapter 75.20 RCW; and
(((3)))
(c) The local government has determined that the project is
substantially consistent with the local shoreline master program. The local
government shall make such determination in a timely manner and provide it by
letter to the project proponent.
(2)
Fish habitat enhancement projects that conform to the provisions of section 3
of this act are determined to be consistent with local shoreline master
programs.
Sec.
5. RCW
35.63.230 and 1995 c 378 s 8 are each amended to read as follows:
A
permit required under this chapter for a watershed restoration project as
defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450
through 89.08.510. A fish habitat enhancement project meeting the criteria
of section 3(1) of this act shall be reviewed and approved according to the
provisions of section 3 of this act.
Sec.
6. RCW
35A.63.250 and 1995 c 378 s 9 are each amended to read as follows:
A
permit required under this chapter for a watershed restoration project as
defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450
through 89.08.510. A fish habitat enhancement project meeting the criteria
of section 3(1) of this act shall be reviewed and approved according to the
provisions of section 3 of this act.
Sec.
7. RCW
36.70.992 and 1995 c 378 s 10 are each amended to read as follows:
A
permit required under this chapter for a watershed restoration project as
defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450 through
89.08.510. A fish habitat enhancement project meeting the criteria of
section 3(1) of this act shall be reviewed and approved according to the
provisions of section 3 of this act.
NEW
SECTION. Sec. 8. A
new section is added to chapter 36.70 RCW to read as follows:
A
county is not liable for adverse impacts resulting from a fish enhancement
project that meets the criteria of section 3 of this act and has been permitted
by the department of fish and wildlife.
NEW
SECTION. Sec. 1. A
new section is added to chapter 35.21 RCW to read as follows:
A
city or town is not liable for adverse impacts resulting from a fish
enhancement project that meets the criteria of section 3 of this act and has
been permitted by the department of fish and wildlife.
NEW
SECTION. Sec. 2. A
new section is added to chapter 35A.21 RCW to read as follows:
A
code city is not liable for adverse impacts resulting from a fish enhancement
project that meets the criteria of section 3 of this act and has been permitted
by the department of fish and wildlife.
Sec.
3. RCW
36.70A.460 and 1995 c 378 s 11 are each amended to read as follows:
A
permit required under this chapter for a watershed restoration project as
defined in RCW 89.08.460 shall be processed in compliance with RCW 89.08.450
through 89.08.510. A fish habitat enhancement project meeting the criteria
of section 3(1) of this act shall be reviewed and approved according to the
provisions of section 3 of this act.
Sec.
4. RCW
43.21C.0382 and 1995 c 378 s 12 are each amended to read as follows:
Decisions
pertaining to watershed restoration projects as defined in RCW 89.08.460 are
not subject to the requirements of RCW 43.21C.030(2)(c). Decisions
pertaining to fish habitat enhancement projects meeting the criteria of section
3(1) of this act and being reviewed and approved according to the provisions of
section 3 of this act are not subject to the requirements of RCW
43.21C.030(2)(c).
Sec.
5. RCW
89.08.470 and 1995 c 378 s 3 are each amended to read as follows:
(1)
By January 1, 1996, the Washington conservation commission shall develop, in
consultation with other state agencies, tribes, and local governments, a
consolidated application process for permits for a watershed restoration
project developed by an agency or sponsored by an agency on behalf of a
volunteer organization. The consolidated process shall include a single permit
application form for use by all responsible state and local agencies. The
commission shall encourage use of the consolidated permit application process
by any federal agency responsible for issuance of related permits. The permit
application forms to be consolidated shall include, at a minimum, applications
for: (((1))) (a) Approvals related to water quality standards
under chapter 90.48 RCW; (((2))) (b) hydraulic project approvals
under chapter 75.20 RCW; and (((3))) (c) section 401 water
quality certifications under 33 U.S.C. Sec. 1341 and chapter 90.48 RCW.
(2)
If a watershed restoration project is also a fish habitat enhancement project
that meets the criteria of section 3(1) of this act, the project sponsor shall
instead follow the permit review and approval process established in section 3
of this act with regard to state and local government permitting requirements.
The sponsor shall so notify state and local permitting authorities.
NEW
SECTION. Sec. 6. A
new section is added to chapter 19.27 RCW to read as follows:
A
fish habitat enhancement project meeting the criteria of section 3(1) of this
act is not subject to grading permits, inspections, or fees and shall be
reviewed according to the provisions of section 3 of this act.
NEW
SECTION. Sec. 7. The
legislature finds that, while the process created in this act can improve the
speed with which fish habitat enhancement projects are put into place,
additional efforts can improve the review and approval process for the future.
The legislature directs the department of fish and wildlife, the conservation
commission, local governments, fish habitat enhancement project applicants, and
other interested parties to work together to continue to improve the permitting
review and approval process. Specific efforts shall include the following:
(1)
Development of common acceptable design standards, best management practices,
and standardized hydraulic project approval conditions for each type of fish
habitat enhancement project;
(2)
An evaluation of the potential for using technical evaluation teams in
evaluating specific project proposals or stream reaches;
(3)
An evaluation of techniques appropriate for restoration and enhancement of
pasture and crop land adjacent to riparian areas;
(4)
A review of local government shoreline master plans to identify and correct
instances where the local plan does not acknowledge potentially beneficial
instream work;
(5)
An evaluation of the potential for local governments to incorporate fish
habitat enhancement projects into their comprehensive planning process; and
(6)
Continued work with the federal government agencies on federal permitting for
fish habitat enhancement projects.
The
department of fish and wildlife shall coordinate this joint effort and shall
report back to the legislature on the group's progress by December 1, 1998.
NEW
SECTION. Sec. 8. A
new section is added to chapter 75.50 RCW to read as follows:
(1)
The department of transportation is authorized to administer a grant program to
assist state agencies, local governments, private landowners, tribes, and
volunteer groups in identifying and removing impediments to anadromous fish
passage. The program shall be administered consistent with the following:
(a)
Eligible projects include corrective projects, inventory, assessment, and
prioritization efforts;
(b)
Projects shall be subject to a competitive application process;
(c)
Priority shall be given to projects that immediately increase access to
available and improved spawning and rearing habitat for depressed, threatened,
and endangered stocks. Priority shall also be given to project applications
that are coordinated with other efforts within a watershed;
(d)
All projects shall be reviewed and approved by the fish passage barrier removal
task force; and
(e)
A match of at least twenty-five percent per project shall be required. For
local, private, and volunteer projects, in-kind contributions may be counted
toward the match requirement.
(2)
The department of transportation shall proceed expeditiously in implementing
the grant program during the 1998 summer construction season.
NEW
SECTION. Sec. 9. By
January 1, 1999, the fish passage barrier removal task force as specified in
RCW 75.50.160 shall report to the legislature on its progress in implementing
the provisions in sections 16 and 19 of this act. The report shall also
include recommendations on future governance and administrative structures to
coordinate local, state, and private fish passage correction projects and to
administer state fish passage grants.
NEW
SECTION. Sec. 10. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and takes effect immediately.
