5670 AMH .... AMH-18

5670 AMH .... AMH-18

CRO'S AMENDMENT

SB 5670 - H AMD ADOPTED 4-24-99

By Representative

On page 3, after line 18, insert the following:

"Sec. 2. RCW 90.48.010 and 1973 c 155 s 1 are each amended to read as follows:

(1) It is declared to be the public policy of the state of Washington to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of ((~~wild life, birds, game,~~)) fish and ((~~other aquatic life~~)) wildlife, and the ((~~industrial~~)) economic development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington. Consistent with this policy, the state of Washington will exercise its powers, as fully and as effectively as possible, to retain and secure high quality for all waters of the state. Consistent with this policy, the experimental use of herbicides when appropriate for controlling aquatic noxious weeds such as spartina will help maintain current beneficial uses of water without degrading water quality. The state of Washington in recognition of the federal government's interest in the quality of the navigable waters of the United States, of which certain portions thereof are within the jurisdictional limits of this state, proclaims a public policy of working cooperatively with the federal government in a joint effort to extinguish the sources of water quality degradation, while at the same time preserving and vigorously exercising state powers to insure that present and future standards of water quality within the state shall be determined by the citizenry, through and by the efforts of state government, of the state of Washington.

(2) The legislature finds that while existing federal and state water pollution control laws have resulted in cleaner water for citizens of Washington state, too many water bodies still exceed existing water quality standards. Such exceedances are caused both by point and nonpoint sources of pollution. It is the policy of the state of Washington to ensure the attainment of water quality standards that protect and restore the ability of the state's waters to provide multiple benefits as defined in RCW 90.54.020.

(3) Water quality standards should be attained through a variety of means, including the development and implementation of total maximum daily loads as provided under the federal clean water act, and the implementation of other pollution controls. The legislature believes that such flexibility must be available if the state is to attain water quality standards as efficiently and effectively as possible. The legislature also believes that many activities and programs are currently being implemented in watersheds across the state that will result in substantial water quality improvement, and that such activities and programs should have an opportunity to demonstrate success before the imposition of a total maximum daily load requirement.

(4) The burden of changing existing practices and obtaining pollutant discharge reductions as needed to attain water quality standards should be shared among the various contributors to water quality impairment in proportion to their contribution and in consideration of other equitable factors and natural background conditions. For water quality limited segments in waters that are shared with, or are upstream or downstream of waters subject to the jurisdiction of another state or Canada, the legislature intends that the department coordinate the development of total maximum daily loads with the United States environmental protection agency and with water quality regulatory agencies in other jurisdictions to ensure equity for dischargers in Washington.

(5) The legislature finds that a watershed approach to water quality improvement allows the consideration of multiple factors and of their interactions. It also provides a means for bringing together those persons who will need to implement necessary measures to improve water quality, as well as others who may be interested in water quality.

(6) Water quality monitoring is becoming increasingly important as the state makes commitments to attain water quality standards, recover aquatic species, and evaluate the effectiveness of actions taken to attain those goals. As a result, the legislature believes it is important to enhance the quality of existing water quality monitoring programs.

(7) While the legislature believes the state is the best manager of the state's water quality, it recognizes that the federal government has ultimate authority over any state total maximum daily load program under the federal clean water act. Therefore, it is the intent of the legislature that the department have no authority to implement or enforce this act if and when the federal government assumes direct responsibility for implementation of the total maximum daily load program by providing written notice to the department that this act, taken as a whole, is inconsistent with federal law. However, this subsection does not affect the ability of the state to continue implementing other programs that improve water quality.

Sec. 3. RCW 90.48.020 and 1995 c 255 s 7 are each amended to read as follows:

((~~Whenever the word~~)) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Characteristic uses" means the uses for which a water body has been classified by the department under state law and the federal clean water act.

(2) "Person" ((~~is used in this chapter, it shall be construed to~~)) includes any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual or any other entity whatsoever.

((~~Wherever the words~~)) (3) "Waters of the state" ((~~shall be used in this chapter, they shall be construed to~~)) includes lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and watercourses within the jurisdiction of the state of Washington.

((~~Whenever the word~~)) (4) "Pollution" ((~~is used in this chapter, it shall be construed to~~)) means such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

((~~Wherever the word~~)) (5) "Department" ((~~is used in this chapter it shall~~)) means the department of ecology.

((~~Whenever the word~~)) (6) "Director" ((~~is used in this chapter it shall~~)) means the director of ecology.

((~~Whenever the words~~)) (7) "Clean water act" means the federal water pollution control act of 1972, as amended (86 Stat. 896; 33 U.S.C. Sec. 1251 et seq.).

(8) "Aquatic noxious weed" ((~~are used in this chapter, they have~~)) has the meaning prescribed under RCW 17.26.020.

(9) "Listing cycle" means the period, as determined by the federal environmental protection agency, between publication of a list of water quality limited segments by the department and the publication of the next list of such segments by the department.

(10) "Load" means an amount of matter or thermal energy that is introduced into a receiving water.

(11) "Loading capacity" means the greatest amount of loading that a water can receive without violating water quality standards.

(12) "Load allocation" means that portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution, or to natural background sources. Load allocations are best estimates of the loading, which may range from reasonably accurate estimates to gross allotments, depending on the availability of data and appropriate techniques for predicting loading. Wherever possible, natural background conditions and nonpoint sources shall be distinguished. Wherever possible, loads shall be allocated to categories of like sources, rather than to aggregates of different categories of sources.

(13) "Wasteload allocation" means that portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. Wasteload allocations constitute a type of water quality-based effluent limitation.

(14) "Total maximum daily loads" means the sum of the individual wasteload allocations for point sources and load allocations for nonpoint sources and natural background conditions. Such loads shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety, and may contain a reserve for growth. Total maximum daily loads may be expressed in terms other than mass per volume.

(15) "Other pollution controls" include, but are not limited to, the following list of laws, rules, regulations, programs, or activities:

(a) Provisions related to the federal conservation reserve enhancement program;

(b) Approved farm plans based on current field office technical guides;

(d) The forest practices act under chapter 76.09 RCW;

(e) Irrigation district water quality management plans that meet the requirements of (k) of this subsection;

(f) Habitat conservation plans for aquatic species prepared under section 10 of the federal endangered species act (16 U.S.C. 1531 et seq.);

(g) Reasonable and prudent conditions established under a biological opinion under section 7 of the federal endangered species act;

(h) Watershed plans that implement best management practices approved by the conservation commission and the department;

(i) Implementation of cleanup of contaminated sediments under the federal comprehensive environmental response, compensation, and liability act of 1980 (42 U.S.C. 9601 et seq.); the model toxics control act, chapter 70.105D RCW; or other statutory authorities;

(j) Cooperative resource management plans administered by the department of natural resources that meet the requirements of (k) of this subsection; or

(k) Any other programs, measures, and activities that include:

(i)Specific methods and approaches intended to lead to water quality improvement and attainment of water quality standards;

(ii) Water quality improvement goals or milestones for identified water quality limited segments;

(iii) Monitoring provisions that enable the department to measure progress toward attainment of water quality standards; and

(iv) Enforcement mechanisms or feedback and modification strategies to ensure or promote compliance with the measures and goals identified in this subsection.

This definition shall not be construed as expanding the reach of existing regulatory controls.

(16) "Wastewater discharge permit" means an individual, model, or general permit issued by the department that specifies treatment, monitoring, and reporting requirements for the discharge of wastewater, and that is intended to satisfy the requirements of the clean water act and of this chapter.

(17) "Water quality limited segment" means any surface water segment, as defined by the department, where it is known that water quality does not meet applicable water quality standards, or is not expected to meet applicable water quality standards by the next listing cycle, even after the application of technology-based effluent limitations required by the federal clean water act.

(18) "Effluent trading" means a method to attain or maintain water quality standards by allowing sources of pollution that can achieve greater pollutant reduction than is otherwise required to sell or trade the credits for their excess reduction to another source.

(19) "Adaptive management" means the processes and principles designed to modify rules adopted under the forest practices act, and their application based on cooperative research, monitoring, and evaluation, and set out in Appendix L to the forestry module memorandum of agreement, also known as the Forests and Fish Report (1999).

NEW SECTION. Sec. 4. A new section is added to chapter 90.48 RCW to read as follows:

WATER QUALITY LIMITED SEGMENTS‑-DATA RELIABILITY FOR DECISIONS TO LIST. (1) The list of water quality limited segments that is required to be submitted to the federal environmental protection agency under the clean water act shall be based upon data that are accurate and reflective of current conditions and that comply with high standards of quality assurance and quality control guidance as prescribed by the department under this section. A water segment may be listed as water quality limited under section 6 of this act only when:

(a) Documentation is provided showing the submitted data have met the data quality objectives and other requirements of an approved quality assurance program plan; or

(b) The department independently samples the water body segment in compliance with its data quality objectives and other requirements of an approved quality assurance program plan to verify the suspected water quality exceedance.

(2) The department shall coordinate a state-wide water quality monitoring network that relies upon existing water quality data collected by the department and others in compliance with the data quality objectives and the data quality assurance and quality control guidelines prescribed by the department under this section. To the extent possible and appropriate, the water quality monitoring network shall include other state agencies, tribes, counties, cities, federal agencies, sewer and water districts, and special purpose districts, as well as private entities that wish to provide such data. The network shall provide data for both ambient water quality monitoring and development of the list of water quality limited segments. The department shall coordinate the collection of water quality data among state agencies to ensure that monitoring for the purposes of this section is comprehensive without being duplicative, and that state monitoring resources are directed toward filling the most critical information gaps. In coordinating this network, the department shall ensure state-wide consistency, provide calibration of local monitoring efforts, provide data verification and validation, and assess long-term water quality trends.

(3) By September 1, 1999, the department shall appoint an advisory committee comprised of one representative selected by each of the following agencies and interests: The department, the Northwest Indian fisheries commission, the United States environmental protection agency, the United States geological survey, the department of health, the department of fish and wildlife, the department of transportation, the Puget Sound action team, the Washington state association of counties, the association of Washington cities, the Washington association of sewer and water districts, the conservation commission, the University of Washington, Washington State University, the association of Washington business, the Washington state farm bureau, the Washington state water resources association, and the Washington state office of the national Audubon society. Each of these representatives shall have experience in the collection, analysis, and interpretation of environmental data. The committee shall also consist of a state senator from each of the two major caucuses appointed by the president of the senate, and a state representative from each of the two major caucuses appointed by the speaker of the house of representatives. The committee shall have the following purposes:

(a) Development of data quality objectives regarding the precision, bias, representativeness, completeness, and comparability required for water quality monitoring data to serve program purposes;

(b) Development of data interpretation guidelines regarding the quantity and representativeness of data required to determine whether water quality standards are being met, and whether a water quality condition is caused by natural background or human factors;

(c) Development of quality assurance and quality control guidelines for the collection, analysis, and interpretation of water quality data for freshwater; and

(d) Comparison of the proposed use-based water quality standards with the current classification system in terms of the protection provided to characteristic uses, and the regulatory and economic impacts on point and nonpoint sources.

(4) The committee identified in subsection (3) of this section shall provide its recommendations on subsection (3)(a) through (c) of this section to the legislature by December 31, 2000. The committee shall provide its recommendations on subsection (3)(d) of this section to the legislature by December 31, 1999.

(5) The department shall develop a system of water quality standards, data quality objectives, data interpretation guidelines, and data quality assurance and quality control guidelines based upon the recommendations of the committee identified in subsection (3) of this section. The water quality standards shall be adopted by rule under RCW 90.48.035 and the administrative procedure act, chapter 34.05 RCW. After issuance, the data quality objectives, data interpretation guidelines, and data quality assurance and quality control guidelines shall be updated periodically to reflect new methods and instrumentation.

(6) After July 1, 2001, the department shall require that any water quality data submitted to the state for purposes of ambient monitoring or compiling a list of water quality limited segments comply with the department's data quality objectives and data quality assurance and quality control guidelines.

NEW SECTION. Sec. 5. A new section is added to chapter 90.48 RCW to read as follows:

ACCESS TO PRIVATE PROPERTY. (1) Except as provided in subsection (2) of this section, and before collecting water quality samples that can only be obtained by entering upon private property, the department or its designee must receive permission from either:

(a) The owner of the property to be entered;

(b) The lessee or operator of the property to be entered; or

(c) A superior court of the state of Washington. The superior courts of the state may issue administrative search warrants to the department to carry out the provisions of this chapter.

(2) If the department believes there is an imminent and substantial threat to human health or the environment from pollution of an acute or emergency nature, the department may collect such samples after first having made a reasonable attempt to obtain permission from the owner, lessee, or operator. The department shall subsequently inform the owner, lessee, or operator of such sampling and the results thereof.

(3) The department or its designee shall offer to divide any water sample and provide a portion to the property owner, lessee, or operator in sufficient quantity that he or she may have a separate analysis conducted at his or her expense.

NEW SECTION. Sec. 6. A new section is added to chapter 90.48 RCW to read as follows:

LISTING OF WATER QUALITY LIMITED SEGMENTS. (1) After July 1, 2001, the department shall prepare a revised list of water quality limited segments, as required under section 303(d) of the clean water act, that is based upon data that are collected and analyzed in compliance with the department's data quality objectives and quality assurance and quality control guidelines. The list shall include all surface water segments that do not meet water quality standards, or are not expected to meet water quality standards by the next listing cycle, even after the application of technology-based effluent limitations required by the federal clean water act. The list shall not include:

(a) Surface water segments that are expected to meet water quality standards before the next listing cycle;

(b) Surface water segments for which natural background conditions are the reason for not meeting the standards; or

(2) Surface water segments shall remain on the list until they meet water quality standards and shall be removed from the list when they are found to meet water quality standards. Deletions from the list shall be based on monitoring data of the same quality and rigor as data used for additions to the list. Additions to, and deletions from, the list of water quality limited segments shall be recorded when the list is updated in the next listing cycle. The list shall be submitted to the federal environmental protection agency at a frequency determined by the environmental protection agency.

(3) To ensure an opportunity for public participation in the process of listing water quality limited segments, the department shall:

(a) Provide notice in the Washington State Register that it is beginning a new cycle for listing of water quality limited segments;

(b) Develop a proposed list of water quality limited segments, and compare the proposed list to the previous list approved by the environmental protection agency to identify water quality trends;

(d) Develop responses to the comments received, and provide those responses to those persons who have requested them;

(e) Develop a final list of water quality limited segments and publish a notice of the availability of the final list in the Washington State Register; and

(f) Submit the final list to the environmental protection agency for approval.

(4) Publication of a notice of the availability of the final list of water quality limited segments in the Washington State Register is an agency action that may be appealed to the Thurston county superior court under RCW 34.05.570(4) within thirty days of the date of publication.

(5) Listing of water quality limited segments as required under this chapter is not subject to the state environmental policy act, chapter 43.21C RCW.

NEW SECTION. Sec. 7. A new section is added to chapter 43.21C RCW to read as follows:

This chapter does not apply to:

(1) Publication by the department of a list of water quality limited segments;

(2) The authorization of other pollution controls in lieu of total maximum daily loads; and

(3) The development of total maximum daily loads.

NEW SECTION. Sec. 8. A new section is added to chapter 90.48 RCW to read as follows:

EFFECT OF LISTING. (1) No permit may be issued to a new source or to a new discharger, as these terms are defined in section 306 of the federal clean water act and in 40 C.F.R. 122.2 and 40 C.F.R. 122.29 as of the effective date of this section, if the discharge would cause or contribute to a violation of water quality standards.

(2) This chapter shall not prevent any existing point source discharge, or any activity that may lead to a nonpoint source discharge conducted in compliance with all applicable federal, state, or local laws, rules, regulations, and requirements affecting water quality, solely because a total maximum daily load has not been completed.

(3) This chapter shall not prevent any new or expanded activity that may lead to a nonpoint source discharge conducted in compliance with all applicable federal, state, or local laws, rules, regulations, and requirements that protect water quality, solely because a total maximum daily load has not been completed.

NEW SECTION. Sec. 9. A new section is added to chapter 90.48 RCW to read as follows:

WATER QUALITY LIMITED SEGMENTS‑-LIST‑-MANAGEMENT. (1) After a list of water quality limited segments has been submitted to the federal environmental protection agency, the department shall sort the list of water quality limited segments by WRIA as defined in RCW 90.82.020 for management purposes.

(2) By June 30, 2001, the department shall determine:

(a) Whether other pollution controls exist in each WRIA that address the causes of the problems that led to the listing of segments as water quality limited in 1996 and in 1998;

(b) Whether such measures are being implemented; and

(c) Whether such measures are expected to result in attainment of water quality standards within a reasonable period of time based upon the nature of the problem.

(3) For water quality limited segments on lists approved after January 1, 2000, the department shall make the determinations identified under subsection (2) of this section within two years of the approval of the list by the environmental protection agency.

(4) To make the determinations under subsections (2) and (3) of this section, the department:

(a) May request information and recommendations from other state and federal agencies, local governments, tribes, conservation districts, and other sources; and

(b) Shall gather available data and information on the other pollution controls being used to address water quality in the relevant WRIAs. If entities implementing other pollution controls collect water quality data, they shall provide such data to the department. The department shall conduct independent sampling to obtain any additional data or information necessary to make its determination.

(5) Where a planning group has chosen to address water quality under RCW 90.82.090, the group shall perform a preliminary evaluation as described in subsection (2) of this section within one year of receiving the first grant to conduct watershed assessments under RCW 90.82.040(2)(b), or within one year of the effective date of this section, whichever is later, and shall forward its findings and recommendations to the department. The department shall consider the planning group's findings and recommendations, if any, in making its initial determinations as to the existence and adequacy of the proposed other pollution controls.

(6) The department shall obtain public comment on its draft initial determinations, and shall finalize its determinations after considering the available information and comments received.

(7) If the department determines that other pollution controls in a WRIA are expected to result in attainment of water quality standards within a reasonable period of time, the department shall allow the use of those other pollution controls and shall not establish total maximum daily loads, except as provided under subsection (11) of this section.

(8) The department shall refer those dischargers who may not have fully implemented other pollution controls to appropriate agencies for technical assistance, or shall offer such assistance directly. The department's goal shall be to encourage the broad use of other pollution controls.

(9) For waters where the department determines that other pollution controls are available and are expected to attain water quality standards within a reasonable period of time, the department shall evaluate ambient water quality data at no greater than five-year intervals to determine whether substantial progress in water quality improvement has been achieved relative to specific listed segments, except that other pollution controls approved under subsection (7) of this section shall be allowed to perform for at least five years before their effectiveness is evaluated. The department may use its watershed approach to water quality management to focus and rotate its resources through succeeding areas of the state. Entities implementing other pollution controls shall provide any available monitoring data to the department so that it may determine the effectiveness of the controls in correcting the water quality problem. The department shall conduct independent sampling to obtain any additional information needed to determine the effectiveness of the other pollution controls.

(10) If the evaluation of ambient water quality data in a given WRIA as provided under subsection (9) of this section demonstrates other pollution controls have not made substantial progress toward the attainment of water quality standards within a reasonable period of time, the department shall enter into discussions with representatives selected by users of other pollution controls in that WRIA to revise the controls so that their implementation results in substantial progress toward the attainment of water quality standards. Such proposed revisions shall be submitted to the department within ninety days of the start of discussions under this subsection.

(11) The department shall develop total maximum daily loads for those water segments where:

(a) Other pollution controls do not exist, have not been implemented, or are not expected to attain water quality standards within a reasonable period of time based upon the nature of the problem;

(b) Discussions under subsection (10) of this section to revise other pollution controls are not successful within ninety days;

(c) Substantial progress toward meeting water quality standards has not been made five years after other pollution controls have been revised through discussions initiated under subsection (10) of this section; or

(d) The complexity of the problems and sources precludes a determination under subsection (2) of this section.

(12) Notwithstanding any other provisions of this chapter:

(a) Total maximum daily loads for water quality limited segments impaired by sediment, habitat degradation, flow, turbidity, or temperature caused by forest practices subject to regulation under the forest practices act, chapter 76.09 RCW, or covered in the forestry module memorandum of agreement, also known as the Forests and Fish Report (1999), are a lower priority for the department and need not be initiated before July 1, 2009;

(b) The department shall not require more stringent forest practices in a total maximum daily load or its implementation before July 1, 2009, except through adaptive management as defined in this act; and

(c) If the achievement of the total maximum daily load allocations cannot be met through forest practices rules, the adjustment of those management practices shall be through adaptive management as defined in this act.

(13) This section does not prohibit the department from completing the total maximum daily loads already in development upon the effective date of this section. Nothing in this act authorizes a shift in emphasis to point sources that would be inconsistent with the priorities established under this section.

Sec. 10. RCW 90.82.090 and 1998 c 247 s 5 are each amended to read as follows:

If the initiating governments choose to include a water quality component, the watershed plan shall include the following elements:

(1) An examination based on existing studies conducted by federal, state, and local agencies of the degree to which legally established water quality standards are being met in the management area;

(2) An examination based on existing studies conducted by federal, state, and local agencies of the causes of water quality violations in the management area, including an examination of information regarding pollutants, point and nonpoint sources of pollution, and pollution-carrying capacities of water bodies in the management area. The analysis shall take into account seasonal stream flow or level variations, natural events, and pollution from natural sources that occurs independent of human activities;

(3) An identification and evaluation of the existence of other pollution controls as defined in chapter 90.48 RCW in use in the management area, of the extent of implementation of such measures, and of the effectiveness of such measures in attaining water quality standards within a reasonable period of time, as well as any recommendations for improving the effectiveness of other pollution controls in the management area;

(4) An examination of the legally established characteristic uses of each of the nonmarine bodies of water in the management area;

((~~(4)~~)) (5) An examination of any total maximum daily load established for nonmarine bodies of water in the management area, unless a total maximum daily load process has begun in the management area as of the date the watershed planning process is initiated under RCW 90.82.060;

((~~(5)~~)) (6) An examination of existing data related to the impact of fresh water on marine water quality;

((~~(6)~~)) (7) A recommended approach for implementing the total maximum daily load established for achieving compliance with water quality standards for the nonmarine bodies of water in the management area, unless a total maximum daily load process has begun in the management area as of the date the watershed planning process is initiated under RCW 90.82.060; and

((~~(7)~~)) (8) Recommended means of monitoring by appropriate government agencies whether actions taken to implement the approach to bring about improvements in water quality are sufficient to achieve compliance with water quality standards.

This chapter does not obligate the state to undertake analysis or to develop strategies required under the federal clean water act (33 U.S.C. Sec. 1251 et seq.). This chapter does not authorize any planning unit, lead agency, or local government to adopt water quality standards or total maximum daily loads under the federal clean water act.

NEW SECTION. Sec. 11. A new section is added to chapter 90.48 RCW to read as follows:

TOTAL MAXIMUM DAILY LOADS. (1) Total maximum daily loads shall only be established for surface waters and shall include the following elements:

(a) A determination of the pollutant of concern and a quantification of the target or desired end point of the total maximum daily load process that indicates compliance with water quality standards taking into account the assimilative capacity of the water segment;

(b) A quantification of the reduction in total pollutant load that must be achieved to meet water quality standards;

(c) Identification of the responsible sources, or categories of sources, of the pollutant that causes water quality standards not to be met, and a quantification of the degree to which each source or source category contributes to the failure to meet water quality standards; and

(d) Establishment of the wasteload and load allocations for identified sources, including categories of nonpoint sources, along with a quantified margin of safety, and any allocations for natural background and future growth.

(2) The department shall control sources of pollution to ground water as otherwise provided for in this chapter or under other state and federal programs and authorities. In identifying the responsible source or categories of sources, as set forth in subsection (1)(c) of this section, and in establishing wasteload and load allocations for identified sources, as set forth in subsection (1)(d) of this section, the department shall not attempt to identify sources of pollutants within ground water, nor shall the department allocate loads or wasteloads to ground water.

(3) Each total maximum daily load shall be implemented through a plan that includes the following elements:

(a) Identification and quantification of control actions and implementation tools, methods, and authorities that will be used to achieve the allocations, in addition to schedules, milestones, and funding options for implementing the identified actions;

(b) A determination of the degree to which uses are being supported, remaining variance from the target, compliance with implementation plans, and the accuracy of sources and source contributions identified in the total maximum daily load; and

(c) A description of how the implementation plan will be modified or revised to ensure water quality standards are met in response to follow-up monitoring and evaluation results.

(4) Department hearings and other public proceedings to initiate total maximum daily loads shall be held in the town or city nearest to the location of the water quality limited segment in order to facilitate participation by affected persons. Those persons who would be affected by an allocation of loads must be given an opportunity to be involved in the total maximum daily load development process from the outset.

(5) Allocations should be developed through consensus among those discharging or releasing pollutants into the relevant watershed. If consensus is not achievable, a mediator may be retained at the dischargers' expense to negotiate an allocation. If an agreement on allocations has not been developed within one hundred eighty days from the start of negotiations on allocations, the department shall allocate loads.

(6) To encourage public participation in the process of developing total maximum daily loads, the department shall provide an opportunity for public comment on any total maximum daily load that meets all of the requirements of this section before its adoption by the department.

(7) A notice and summary of a total maximum daily load that meets all of the requirements of this section shall be published in the Washington State Register. A total maximum daily load may be implemented only through wastewater discharge permits or through regulatory and nonregulatory programs that address nonpoint sources.

(8) Publication of a notice and summary of a total maximum daily load in the Washington State Register is an agency action that may be appealed to Thurston county superior court pursuant to RCW 34.05.570(4) within thirty days of the date of publication in the Washington State Register.

(9) Publications of total maximum daily loads as required under this chapter are not subject to the state environmental policy act, chapter 43.21C RCW.

(10) When information is available, load allocations for those nonpoint sources that have not made substantial progress toward water quality improvement as described in section 9 of this act shall be based on the following considerations:

(a) Loads shall first be reduced in proportion to the reductions made by others in the same source category for those sources that have not made expected reductions in their loads, either because they have failed to implement other pollution controls, or because the measures are not effective in making such reductions;

(b) Loads shall next be reduced proportionally, or as the department deems appropriate, across all sources in order to achieve the pollutant reductions necessary to achieve water quality standards.

(11) The department shall provide a report to the legislature by December 31, 2001, regarding the implementation of this act and its effects on the attainment of water quality standards for surface waters.

NEW SECTION. Sec. 12. A new section is added to chapter 90.48 RCW to read as follows:

EFFLUENT TRADING. (1) By July 1, 2001, the department shall investigate, develop, and implement a procedure for effluent trading. The procedure shall enable persons discharging or releasing pollutants to enter into contracts or other enforceable agreements with each other, appropriately overseen and administered by the department, to offset or trade quantifiable amounts of pollutants so as to efficiently and effectively attain or maintain water quality standards.

(2) Reductions in pollutant units from amounts or quantities authorized under a total maximum daily load as implemented through a federal clean water act discharge permit or a state wastewater discharge permit, or through nonpoint sources, may be freely exchanged with other persons within the same receiving watershed subject to the procedures and rules of the department.

(3) In developing the mechanisms and procedures required by this section, the department shall not:

(a) Compel or require any person to engage in effluent trading as an alternative to other means or mechanisms to attain or maintain water quality standards; or

(b) Set or determine the price or payment made, if any, in any effluent trade.

(4) The department shall seek any approvals, waivers, or authorizations from the environmental protection agency or other state and federal agencies needed to implement or to facilitate effluent trading to its fullest extent. However, such effluent trading shall not affect or restrict the authority of the department to implement categorical effluent limits or treatment requirements adopted by the department or the federal environmental protection agency, nor shall any effluent trade create any property rights of any sort.

(5) The department shall adopt rules as necessary implementing effluent trading. Such rules shall allow pollutant trading and other procedures to receive any necessary approvals with the minimum of administrative processing consistent with federal and state laws and rules.

NEW SECTION. Sec. 13. A new section is added to chapter 90.48 RCW to read as follows:

MARINE WATERS‑-TOTAL MAXIMUM DAILY LOADS. Because of their location downstream of most human activities, marine sediments tend to be the final repository of many pollutants generated by human activity. Sediment cleanup alone, however, may be insufficient to attain water quality standards, unless the record of decision issued under a cleanup under the federal comprehensive environmental response, compensation, and liability act of 1980, or chapter 70.105D RCW, or other cleanup authority also includes a plan for controlling ongoing pollutant sources.

For water quality limited segments caused by contaminated sediments in marine waters where a sediment cleanup has been planned or completed, but no source control plan has been adopted; a total maximum daily load shall be developed and implemented.

NEW SECTION. Sec. 14. A new section is added to chapter 90.48 RCW to read as follows:

LIMITATIONS ON COMPLIANCE ACTIONS. (1) Except as provided in subsections (2) and (3) of this section, the department shall not take compliance actions against persons causing exceedances of water quality standards identified as limiting for salmonids, other aquatic life, or other water-dependent wildlife that are listed as threatened or endangered under the federal endangered species act, or that are candidates for such listing, if such persons have entered into binding agreements with the national marine fisheries service or the United States fish and wildlife service to implement mechanisms that:

(a) Have been designed to meet water quality standards as identified in this subsection (1);

(b) Have been designed to conserve listed species; and

Such mechanisms may include, but are not limited to, the pollution controls identified in RCW 90.48.020.

(2) The immunity provided under subsection (1) of this section shall be provided:

(a) Only as long as substantial measurable progress toward attainment of water quality standards can be demonstrated at five-year intervals after adoption of the mechanisms described under subsection (2) of this section for up to fifteen years;

(b) Only for activities and facilities that are specifically addressed in the mechanisms described under subsection (1) of this section; and

(3) The immunity provided under subsection (1) of this section shall lapse:

(a) If substantial measurable progress cannot be demonstrated in each five-year period for up to fifteen years; or

(b) Following any violation of or failure to implement any of the terms of the binding agreements identified in subsection (1) of this section.

(4) Except as provided in subsections (1), (2), and (3) of this section, the authority of any regulatory agency to take any enforcement action authorized by law shall not be limited. This section shall not limit a regulatory agency's authority to take any compliance actions as authorized by law based upon a person's failure to comply with specific terms and conditions of any permit or license issued by the agency to that person, failure to obtain a permit for discharges requiring a permit under the federal clean water act, or knowing or willful violations of this chapter and implementing rules.

NEW SECTION. Sec. 15. STORM WATER ADVISORY COMMITTEE. (1) The department of ecology shall convene a storm water advisory committee for the purpose of updating the department's storm water management plan and the Puget Sound storm water management manual. The advisory committee shall include, but not be limited to, one representative selected by each of the following agencies and associations: The department of ecology; the department of natural resources; the department of community, trade, and economic development; the department of fish and wildlife; the department of transportation; the Puget Sound action team; the Washington state association of counties; the association of Washington cities; the Washington association of sewer and water districts; the American public works association; the national association of industrial and office properties; the American society of civil engineers; the association of Washington business; the Washington state farm bureau; people for Puget Sound; and the Washington environmental council.

(2) The advisory committee shall be appointed no later than September 1, 1999, and shall complete its work by June 30, 2001. The department of ecology shall provide a progress report to the legislature on storm water management issues and the approach to these issues taken by the advisory committee no later than December 31, 1999.

(3) This section expires December 31, 2001.

NEW SECTION. Sec. 16. A new section is added to chapter 90.48 RCW to read as follows:

CONFLICT WITH FEDERAL LAW‑-RESOLUTION. If notified by responsible officials of any conflict of this chapter with federal law or program requirements or with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the regulatory agency notified of the conflict shall actively seek to resolve the conflict. If the agency determines that the conflict cannot be resolved without the loss of benefits or authority to the state, the agency shall notify the governor, the president of the senate, and the speaker of the house of representatives in writing within thirty days of making that determination.

NEW SECTION. Sec. 17. CAPTIONS NOT LAW. Captions used in this act are not any part of the law.

NEW SECTION. Sec. 18. 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. 19. If specific funding for the purposes of sections 2 through 18 of this act, referencing this act by bill or chapter and section numbers, is not provided by June 30, 1999, in the omnibus appropriations act, sections 2 through 18 of this act are null and void."

Renumber the remaining section consecutively and correct any internal references accordingly.

On page 3, beginning on line 19, strike all of section 2 and insert the following:

"NEW SECTION. Sec. 20. Section 1 of 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."

Correct the title.

NOT CRO'S AMENDMENT

SB 5670 - H COMM AMD

By Committee on Agriculture & Ecology

On page 1, line 11, after "as" strike "defined in 40 C.F.R. Sec. 172.3" and insert "described in 40 C.F.R. Sec. 172.3(c)(2)"

On page 2, line 23, after "as" strike "defined in 40 C.F.R. Sec. 172.3" and insert "described in 40 C.F.R. Sec. 172.3(c)(2)"

On page 3, line 14, after "as" strike "defined in 40 C.F.R. Sec. 172.3" and insert "described in 40 C.F.R. Sec. 172.3(c)(2)"