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. In
order to encourage the cleanup of contaminated areas of aquatic lands, the
legislature declares its intent to centralize and streamline the state's
decision-making processes. 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 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 aquatic lands.
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.
(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
(c)
The normal use of harbor areas for commerce and navigation is not impaired.
(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.
