BP BHEAD INT S [atlas:bill]

AN ACT Relating to fish passage barriers; amending RCW 75.20.040, 75.20.060, 75.20.061, 77.12.425, and 75.46.030; and adding new sections to chapter 75.46 RCW.

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

NEW SECTION. Sec. 1. A new section is added to chapter 75.46 RCW to read as follows:

(1) The interagency review team established under RCW 75.46.080 shall maintain a comprehensive inventory of barriers to fish passage. The inventory shall be compiled from existing and ongoing inventories being conducted by the state department of transportation, local governments, and facility owners. The team shall place the highest priority upon building the inventory for those geographic areas of the state with salmon stocks listed under the federal endangered species act, and for which fish passage barriers are identified as a factor limiting stock recovery. The team shall seek recommendations from the independent science panel created under RCW 75.46.050 on criteria and methods for identifying high priority salmon stocks and high priority passage barrier facilities to assist with compiling and maintaining the inventory under this subsection and the listing under subsection (2) of this section.

(2) Not later than June 30, 2001, the team shall identify from the inventory those passage barriers that pose the greatest limitations upon the recovery of salmon stocks listed on the federal endangered species act, considering stocks state-wide and the relative impact of these facilities on recovery and other limiting factors. Before adding a facility to the list, the team shall notify the facility owner of the proposed addition. The team shall not add a facility for which the owner demonstrates to the team that construction to modify the facility to eliminate the passage barrier will be commenced by July 1, 2003. The list shall include not fewer than one hundred facilities posing passage barriers.

(3) Upon finalizing the list required in subsection (2) of this section, the team shall notify the owners of the listed facilities and work with them to develop reasonable plans and compliance schedules for modifying the facility to eliminate the passage barrier. The plans shall include a design and construction component, a plan for maintenance of the facility to prevent it becoming a barrier to fish passage in the future, and a monitoring component to assess the performance of the fish passage facility. The compliance schedule shall establish a goal of early action to eliminate the barrier, consistent with state recovery plans and consistent with applicable habitat work schedules for the watershed in which the facility is located.

NEW SECTION. Sec. 2. A new section is added to chapter 75.46 RCW to read as follows:

Until June 30, 2003, any state agency considering the award of grants or loans for a project to eliminate fish passage barriers shall accord a preference for applications addressing facilities listed under section 1 of this act and for which the applicant has adopted a plan and compliance schedule approved by the interagency review team.

Sec. 3. RCW 75.20.040 and 1998 c 190 s 85 are each amended to read as follows:

A diversion device used for conducting water from a lake, river, or stream for any purpose shall be equipped with a fish guard approved by the director to prevent the passage of fish into the diversion device. The fish guard shall be maintained at all times when water is taken into the diversion device. The fish guards shall be installed at places and times prescribed by the director upon thirty days' notice to the owner of the diversion device.

Each day the diversion device is not equipped with an approved fish guard is a separate offense. If within thirty days after notice to equip a diversion device the owner fails to do so, the director may take possession of the diversion device and close the device until it is properly equipped. Expenses incurred by the department constitute the value of a lien upon the diversion device and upon the real and personal property of the owner. Notice of the lien shall be filed and recorded in the office of the county auditor of the county in which the action is taken.

Until June 30, 2003, the director shall not take action under this section where the director determines that the owner is in compliance with a plan and compliance schedule approved by the interagency review team under section 1 of this act.

Sec. 4. RCW 75.20.060 and 1998 c 190 s 86 are each amended to read as follows:

(1) A dam or other obstruction across or in a stream shall be provided with a durable and efficient fishway approved by the director. Plans and specifications shall be provided to the department prior to the director's approval. The fishway shall be maintained in an effective condition and continuously supplied with sufficient water to freely pass fish.

(2) If a person fails to construct and maintain a fishway or to remove the dam or obstruction in a manner satisfactory to the director, then within thirty days after written notice to comply has been served upon the owner, his agent, or the person in charge, the director may construct a fishway or remove the dam or obstruction. Expenses incurred by the department constitute the value of a lien upon the dam and upon the personal property of the person owning the dam. Notice of the lien shall be filed and recorded in the office of the county auditor of the county in which the dam or obstruction is situated. The lien may be foreclosed in an action brought in the name of the state.

(3) If, within thirty days after notice to construct a fishway or remove a dam or obstruction, the owner, his agent, or the person in charge fails to do so, the dam or obstruction is a public nuisance and the director may take possession of the dam or obstruction and destroy it. No liability shall attach for the destruction.

(4) Until June 30, 2003, the director shall not take action under subsections (2) and (3) of this section where the director determines that the owner is in compliance with a plan and compliance schedule approved by the interagency review team under section 1 of this act.

Sec. 5. RCW 75.20.061 and 1983 1st ex.s. c 46 s 73 are each amended to read as follows:

(1) If the director determines that a fishway or fish guard described in RCW 75.20.040 and 75.20.060 and in existence on September 1, 1963, is inadequate, in addition to other authority granted in this chapter, the director may remove, relocate, reconstruct, or modify the device, without cost to the owner. The director shall not materially modify the amount of flow of water through the device. After the department has completed the improvements, the fishways and fish guards shall be operated and maintained at the expense of the owner in accordance with RCW 75.20.040 and 75.20.060.

(2) Until June 30, 2003, the director shall not take action under this section where the director determines that the owner is in compliance with a plan and compliance schedule approved by the interagency review team under section 1 of this act.

Sec. 6. RCW 77.12.425 and 1980 c 78 s 90 are each amended to read as follows:

(1) The director may authorize removal, relocation, reconstruction, or other modification of an inadequate fishway or fish protective device required by RCW 77.16.210 and 77.16.220 which device was in existence on September 1, 1963, without cost to the owner for materials and labor. The modification may not materially alter the amount of water flowing through the fishway or fish protective device. Following modification, the fishway or fish protective device shall be maintained at the expense of the person or governmental agency owning the obstruction or water diversion device.

Sec. 7. RCW 75.46.030 and 1998 c 246 s 4 are each amended to read as follows:

Beginning in December 2000, the governor shall submit a biennial state of the salmon report to the legislature during the first week of December. The report may include the following:

(1) A description of the amount of in-kind and financial contributions, including volunteer, private, and state, federal, tribal as available, and local government money directly spent on salmon recovery in response to actual, proposed, or expected endangered species act listings;

(2) A summary of habitat projects including but not limited to:

(a) A summary of accomplishments in removing barriers to salmon passage and an identification of existing barriers;

(b) A summary of salmon restoration efforts undertaken in the past two years;

(d) A summary of efforts taken to protect salmon habitat;

(3) A summary of collaborative efforts undertaken with adjoining states or Canada;

(4) A summary of harvest and hatchery management activities affecting salmon recovery;

(5) A summary of information regarding impediments to successful salmon recovery efforts;

(6) A summary of the number and types of violations of existing laws pertaining to: (a) Water quality; ((~~and~~)) (b) passage barriers; and (c) salmon. The summary shall include information about the types of sanctions imposed for these violations;

(7) Information on the estimated carrying capacity of new habitat created pursuant to chapter 246, Laws of 1998; ((~~and~~))

(8) A summary of actions to eliminate passage barriers, including the inventory, priority list, and project plans and compliance schedules under section 1 of this act; and

(9) Recommendations to the legislature that would further the success of salmon recovery. The recommendations may include:

(a) The need to expand or improve nonregulatory programs and activities; and

(b) The need to expand or improve state and local laws and regulations.