H-1950

AN ACT Relating to clarifying state agency responsibility for cleaning up contaminated sediments; amending RCW 79.90.465; adding a new section to chapter 79.90 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. The legislature recognizes that many of the state's harbors are impacted from decades of urban population growth as well as transportation, industrial, and commercial uses. The state reaffirms the critical importance of its harbor areas for the constitutionally recognized purposes of commerce and navigation, and also recognizes that its estuaries and harbors are critical to the health of its aquatic environment, including endangered species of salmon.

The legislature acknowledges that in some harbors the state, as both a regulator and a manager of aquatic lands, must be a cooperative partner in comprehensive community efforts to revitalize and restore urban harbors, and prepare recovery plans that address the requirements of the federal endangered species act.

In order to encourage the cleanup of contaminated areas of urban harbors, revitalize important water-dependent industries, improve habitat for native fish populations, and establish certainty for shoreline communities, the legislature declares its intent to centralize and streamline the state's decision-making processes for the comprehensive cleanup of urban harbors. The department of ecology shall assume primary responsibility, on behalf of the state, for working cooperatively with local communities to seek expeditious and innovative cleanup solutions for state-owned aquatic lands. The department of ecology's decisions for remediation of state-owned aquatic lands shall be binding on all other state agencies.

The legislature also declares that it intends to use existing laws and powers, particularly chapter 70.105D RCW, the model toxics control act, and chapter 90.48 RCW, to effect the cleanup of urban harbors. The policies and processes of these laws, combined with the state environmental policy act, chapter 43.21C RCW, shall be the primary basis of the department of ecology's urban harbor cleanup decision.

The legislature recognizes that local governments, through the shoreline management act, chapter 90.58 RCW, and the growth management act, chapter 36.70A RCW, have planned comprehensively in conjunction with the state and with port districts for the land uses that will occur on and around urban harbors. These land use planning processes are recognized to be the basis of land use planning for urban harbors.

In all land management matters involving state-owned aquatic land other than the cleanup of state-owned aquatic land, the department of natural resources shall retain all of its powers and responsibilities for implementing chapters 79.90 through 79.96 RCW and shall continue to exercise all of these existing land management powers and responsibilities.

NEW SECTION. Sec. 2. A new section is added to chapter 79.90 RCW to read as follows:

(1) The state finds that it may be appropriate to use state-owned aquatic lands as part of a remedial action for contaminated sediments from state or federally required cleanups of aquatic areas, or as mitigation for the habitat impacts of cleanup or disposal actions. In examining a proposal to use state-owned aquatic lands for disposal or habitat mitigation, the department of ecology, as required under chapters 70.105D, 90.48, and 43.21C RCW, shall evaluate a range of alternatives that consider habitat impacts, impacts to navigation and water-borne commerce, cost, and the benefits of expeditiously reducing the availability of hazardous substances to the environment. In examining remediation alternatives, the department of ecology shall follow constitutional mandates to reserve harbor areas for navigation and commerce.

(2) The department of ecology may require the disposal or containment of contaminated sediments on state-owned aquatic lands only in an approved multi-user confined aquatic disposal site, or when the following conditions are met:

(a) The department finds that such use presents the most environmentally protective option among a reasonable range of upland, nearshore, and in-water disposal options;

(b) The department of ecology finds that there are no unacceptable adverse environmental impacts from the loss of nearshore vegetated aquatic habitat; and

(3) In examining alternatives for remedial action, the department shall consult with affected state agencies, federal agencies, tribes, port districts, and local governments. In selecting disposal sites under this section, the department shall strive to limit the number of separate disposal locations.

(4) If the department of ecology, in exercising its regulatory authority to require cleanup of contaminated sediments, chooses a remedial action or concurs with an action required under the comprehensive environmental response, compensation, and liability act of 1980 that requires the use of state-owned aquatic land for containment or disposal of sediments, or for mitigation of habitat, the department of natural resources shall issue a use authorization within sixty days of the date the department of ecology issues or concurs in a final remedial action. This use authorization must contain the provisions needed to expeditiously allow the use of state-owned aquatic lands for the implementation of those activities required, or concurred with, by the department of ecology. The use authorization may not contain terms or conditions which, in the judgment of the department of ecology, delay or alter the purpose of the remedial action. Any such use authorization may contain measures to indemnify or otherwise hold the state harmless from any additional liability arising out of the use of state-owned aquatic lands. Nothing in this section shall be construed to impose liability on the state as a result of the department of ecology's exercise of its regulatory authority to require cleanup.

(5) This section only applies to the cleanup and mitigation of the impacts of cleanup of state-owned aquatic land. It does not affect the powers and responsibilities of the department of natural resources for implementing chapters 79.90 through 79.96 RCW in any other land management matters.

Sec. 3. RCW 79.90.465 and 1984 c 221 s 4 are each amended to read as follows:

The definitions in this section apply throughout chapters 79.90 through 79.96 RCW.

(1) "Water-dependent use" means a use which cannot logically exist in any location but on the water. Examples include, but are not limited to, water-borne commerce; terminal and transfer facilities; ferry terminals; watercraft sales in conjunction with other water-dependent uses; watercraft construction, repair, and maintenance; moorage and launching facilities; aquaculture; log booming; aquatic habitat mitigation; and public fishing piers and parks.

(2) "Water-oriented use" means a use which historically has been dependent on a waterfront location, but with existing technology could be located away from the waterfront. Examples include, but are not limited to, wood products manufacturing, watercraft sales, fish processing, petroleum refining, sand and gravel processing, log storage, and house boats. For the purposes of determining rent under this chapter, water-oriented uses shall be classified as water-dependent uses if the activity either is conducted on state-owned aquatic lands leased on October 1, 1984, or was actually conducted on the state-owned aquatic lands for at least three years before October 1, 1984. If, after October 1, 1984, the activity is changed to a use other than a water-dependent use, the activity shall be classified as a nonwater-dependent use. If continuation of the existing use requires leasing additional state-owned aquatic lands and is permitted under the shoreline management act of 1971, chapter 90.58 RCW, the department may allow reasonable expansion of the water-oriented use.

(3) "Nonwater-dependent use" means a use which can operate in a location other than on the waterfront. Examples include, but are not limited to, hotels, condominiums, apartments, restaurants, retail stores, and warehouses not part of a marine terminal or transfer facility.

(4) "Log storage" means the water storage of logs in rafts or otherwise prepared for shipment in water-borne commerce, but does not include the temporary holding of logs to be taken directly into a vessel or processing facility.

(5) "Log booming" means placing logs into and taking them out of the water, assembling and disassembling log rafts before or after their movement in water-borne commerce, related handling and sorting activities taking place in the water, and the temporary holding of logs to be taken directly into a processing facility. "Log booming" does not include the temporary holding of logs to be taken directly into a vessel.

(6) "Department" means the department of natural resources.

(7) "Port district" means a port district created under Title 53 RCW.

(8) The "real rate of return" means the average for the most recent ten calendar years of the average rate of return on conventional real property mortgages as reported by the federal home loan bank board or any successor agency, minus the average inflation rate for the most recent ten calendar years.

(9) The "inflation rate" for a given year is the percentage rate of change in the previous calendar year's all commodity producer price index of the bureau of labor statistics of the United States department of commerce. If the index ceases to be published, the department shall designate by rule a comparable substitute index.

(10) "Public utility lines" means pipes, conduits, and similar facilities for distribution of water, electricity, natural gas, telephone, other electronic communication, and sewers, including sewer outfall lines.

(11) "Terminal" means a point of interchange between land and water carriers, such as a pier, wharf, or group of such, equipped with facilities for care and handling of cargo and/or passengers.

(12) "State-owned aquatic lands" means those aquatic lands and waterways administered by the department of natural resources or managed under RCW 79.90.475 by a port district. "State-owned aquatic lands" does not include aquatic lands owned in fee by, or withdrawn for the use of, state agencies other than the department of natural resources.