State of Washington | 58th Legislature | 2003 Regular Session |
READ FIRST TIME 03/10/03.
AN ACT Relating to drainage infrastructure; amending RCW 77.55.060, 77.55.100, 77.55.110, 77.55.280, 77.55.290, 77.55.300, and 77.55.310; adding new sections to chapter 77.55 RCW; creating new sections; providing expiration dates; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The legislature finds that agriculture
is a key industry for the state. The legislature also finds that
agriculture is a way of life for many people whose families settled
lands in the state and have actively farmed them for generations. The
legislature further finds that agriculture is a cultural and historical
component of many communities and represents the societal and economic
foundation of many rural areas in Washington. In addition, the
legislature finds that agricultural lands provide key wildlife habitat
and open space for the enjoyment and economic benefit of the people of
Washington.
(2) The legislature also finds that salmon recovery is a priority
in Washington. The legislature recognizes that the listings of salmon
and steelhead runs in Washington under the federal endangered species
act (16 U.S.C. Sec. 1531 et seq.) may impose obligations on state and
local governments, as well as the citizens of Washington, to undertake
recovery efforts to facilitate salmon recovery in the state. In
addition to satisfying legal obligations, the legislature recognizes
the importance of salmon recovery for sport, commercial, and tribal
fishing industries, to respect the cultural importance of salmon to
tribes and to the state, and for the economic vitality of many areas of
the state. The legislature further recognizes that numerous efforts
are under way across the state to promote fish habitat restoration and
that millions of dollars of public funds have been dedicated to these
efforts.
(3) The legislature further finds that agricultural lands and the
agricultural industry can play an important role in salmon recovery.
The legislature recognizes that all local governments are required by
the growth management act, chapter 36.70A RCW, to designate
agricultural lands of long-term commercial significance and that local
governments planning under RCW 36.70A.040 are required to designate and
protect these lands. The legislature also recognizes that agricultural
lands, by being protected from development that will impair critical
salmon habitat, are both an economic and an environmental resource for
the state.
(4) The legislature declares that the productivity of agricultural
lands cannot be sacrificed. The legislature finds that economic
circumstances in the agricultural industry, encroaching development on
agricultural lands and adjacent lands, and the restrictions imposed on
farming in various land use and environmental regulations have resulted
in significant losses of agricultural lands in this state. The
legislature therefore declares that it is in the best interest of the
state to establish policies that result in no net loss of the state's
agricultural land base. The legislature also declares that it is in
the best interest of the state to implement the hydraulics program and
fish passage laws in ways that preserve the agricultural land base,
including cooperative agreements between the department of fish and
wildlife and affected landowners, and that achieve mutual landowner and
fish habitat goals.
(5) The legislature finds that the hydraulic project approval
provisions of this chapter have recently been implemented in ways that
required restoration of salmon habitat by converting existing
agricultural land. The legislature also finds that this has resulted
in financial losses for agricultural producers and potential damage to
previously productive agricultural land in Skagit county. The
legislature further finds that failure to reconcile the goals of
protecting agricultural lands of long-term commercial significance and
fish passage requirements may lead to future damage to and potentially
loss of productive agricultural lands in Skagit and other Washington
counties.
(6) The legislature finds that efforts to restore salmon habitat
should look first to opportunities that exist on public lands. The
legislature recognizes the importance of restoring salmon habitat as
part of the state's overall strategy for recovering salmon. The
legislature also finds that public lands play a key role in the state's
salmon recovery efforts and that the use of public lands can assist the
state in this effort without raising concerns about potential impacts
on private property rights.
(7) The legislature therefore declares that the purposes of this
act are to:
(a) Clarify the purpose of the fishway and hydraulic project
approval requirements of chapter 77.55 RCW as applied to works and
projects related to drainage infrastructure including tide gates, flood
gates, and pump stations;
(b) Create demonstration projects on specified streams to assess
the effectiveness of self-regulating tide gates in achieving fish
passage and to test their impact, if any, on surrounding agricultural
lands;
(c) Prioritize the use of public lands for fish habitat restoration
projects; and
(d) Establish a task force to review issues regarding the
implementation of fishway and hydraulic project approval requirements
as they relate to designated agricultural lands, analyze the
effectiveness of the demonstration projects for fish habitat
restoration, and report any legislative recommendations to the
legislature.
Sec. 2 RCW 77.55.060 and 1998 c 190 s 86 are each amended to read
as follows:
(1) Subject to subsection (3) of this section, 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 or her 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.
If, within thirty days after notice to construct a fishway or
remove a dam or obstruction, the owner, his or her 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.
(3) For the purposes of this section, "other obstruction" does not
include tide gates or flood gates that were originally installed as
part of an agricultural drainage system on or before the effective date
of this section or the repair, replacement, or improvement of such tide
gates or flood gates.
Sec. 3 RCW 77.55.100 and 2002 c 368 s 2 are each amended to read
as follows:
(1) In the event that any person or government agency desires to
construct any form of hydraulic project or perform other work that will
use, divert, obstruct, or change the natural flow or bed of any of the
salt or fresh waters of the state, such person or government agency
shall, before commencing construction or work thereon and to ensure the
proper protection of fish life, secure the approval of the department
as to the adequacy of the means proposed for the protection of fish
life. This approval shall not be unreasonably withheld or unreasonably
conditioned.
(2)(a) The department shall grant or deny approval of a standard
permit within forty-five calendar days of the receipt of a complete
application and notice of compliance with any applicable requirements
of the state environmental policy act, made in the manner prescribed in
this section. The permit must contain provisions allowing for minor
modifications to the plans and specifications without requiring
reissuance of the permit.
(b) The applicant may document receipt of application by filing in
person or by registered mail. A complete application for approval
shall contain general plans for the overall project, complete plans and
specifications of the proposed construction or work within the mean
higher high water line in salt water or within the ordinary high water
line in fresh water, and complete plans and specifications for the
proper protection of fish life.
(c) The forty-five day requirement shall be suspended if:
(i) After ten working days of receipt of the application, the
applicant remains unavailable or unable to arrange for a timely field
evaluation of the proposed project;
(ii) The site is physically inaccessible for inspection; or
(iii) The applicant requests delay. Immediately upon determination
that the forty-five day period is suspended, the department shall
notify the applicant in writing of the reasons for the delay.
(d) For purposes of this section, "standard permit" means a written
permit issued by the department when the conditions under subsections
(3) and (5)(b) of this section are not met.
(3)(a) The department may issue an expedited written permit in
those instances where normal permit processing would result in
significant hardship for the applicant or unacceptable damage to the
environment. In cases of imminent danger, the department shall issue
an expedited written permit, upon request, for work to repair existing
structures, move obstructions, restore banks, protect property, or
protect fish resources. Expedited permit requests require a complete
written application as provided in subsection (2)(b) of this section
and shall be issued within fifteen calendar days of the receipt of a
complete written application. Approval of an expedited permit is valid
for up to sixty days from the date of issuance.
(b) For the purposes of this subsection, "imminent danger" means a
threat by weather, water flow, or other natural conditions that is
likely to occur within sixty days of a request for a permit
application.
(c) The department may not require the provisions of the state
environmental policy act, chapter 43.21C RCW, to be met as a condition
of issuing a permit under this subsection.
(d) The department or the county legislative authority may
determine if an imminent danger exists. The county legislative
authority shall notify the department, in writing, if it determines
that an imminent danger exists.
(4) Approval of a standard permit is valid for a period of up to
five years from date of issuance. The permittee must demonstrate
substantial progress on construction of that portion of the project
relating to the approval within two years of the date of issuance. If
the department denies approval, the department shall provide the
applicant, in writing, a statement of the specific reasons why and how
the proposed project would adversely affect fish life. Protection of
fish life shall be the only ground upon which approval may be denied or
conditioned. Chapter 34.05 RCW applies to any denial of project
approval, conditional approval, or requirements for project
modification upon which approval may be contingent.
(5)(a) In case of an emergency arising from weather or stream flow
conditions or other natural conditions, the department, through its
authorized representatives, shall issue immediately, upon request, oral
approval for removing any obstructions, repairing existing structures,
restoring stream banks, or to protect property threatened by the stream
or a change in the stream flow without the necessity of obtaining a
written approval prior to commencing work. Conditions of an oral
approval to protect fish life shall be established by the department
and reduced to writing within thirty days and complied with as provided
for in this section. Oral approval shall be granted immediately, upon
request, for a stream crossing during an emergency situation.
(b) For purposes of this section and RCW 77.55.110, "emergency"
means an immediate threat to life, the public, property, or of
environmental degradation.
(c) The department or the county legislative authority may declare
and continue an emergency when one or more of the criteria under (b) of
this subsection are met. The county legislative authority shall
immediately notify the department if it declares an emergency under
this subsection.
(6) The department shall, at the request of a county, develop five-year maintenance approval agreements, consistent with comprehensive
flood control management plans adopted under the authority of RCW
86.12.200, or other watershed plan approved by a county legislative
authority, to allow for work on public and private property for bank
stabilization, bridge repair, removal of sand bars and debris, channel
maintenance, and other flood damage repair and reduction activity under
agreed-upon conditions and times without obtaining permits for specific
projects.
(7) This section shall not apply to the construction of any form of
hydraulic project or other work which diverts water for agricultural
irrigation or stock watering purposes authorized under or recognized as
being valid by the state's water codes, or when such hydraulic project
or other work is associated with streambank stabilization to protect
farm and agricultural land as defined in RCW 84.34.020. These
irrigation or stock watering diversion and streambank stabilization
projects shall be governed by RCW 77.55.110.
A landscape management plan approved by the department and the
department of natural resources under RCW 76.09.350(2), shall serve as
a hydraulic project approval for the life of the plan if fish are
selected as one of the public resources for coverage under such a plan.
(8) For the purposes of this section and RCW 77.55.110, "bed" means
the land below the ordinary high water lines of state waters. This
definition does not include irrigation ditches, canals, storm water
run-off devices, or other artificial watercourses except where they
exist in a natural watercourse that has been altered by man.
(9) The phrase "to construct any form of hydraulic project or
perform other work" does not include the act of driving across an
established ford. Driving across streams or on wetted stream beds at
areas other than established fords requires approval. Work within the
ordinary high water line of state waters to construct or repair a ford
or crossing requires approval.
(10) The department shall not require the installation of a self-regulating tide gate as a condition of hydraulic project approval for
maintenance or replacement of agricultural drainage systems under this
section unless the condition is consistent with a salmon recovery plan
adopted according to chapter 77.85 RCW or a plan developed according to
section 12 of this act, the affected landowners and the associated
special taxing districts under RCW 85.38.180 have agreed to the
installation, and all impacts have been fully compensated. Any
condition requiring a self-regulating tide gate to achieve fish passage
in an existing hydraulic project approval may not be enforced.
Sec. 4 RCW 77.55.110 and 2002 c 368 s 3 are each amended to read
as follows:
(1) In the event that any person or government agency desires to
construct any form of hydraulic project or other work that diverts
water for agricultural irrigation or stock watering purposes, or when
such hydraulic project or other work is associated with streambank
stabilization to protect farm and agricultural land as defined in RCW
84.34.020, and when such diversion or streambank stabilization will
use, divert, obstruct, or change the natural flow or bed of any river
or stream or will utilize any waters of the state or materials from the
stream beds, the person or government agency shall, before commencing
construction or work thereon and to ensure the proper protection of
fish life, secure a written approval from the department as to the
adequacy of the means proposed for the protection of fish life. This
approval shall not be unreasonably withheld or unreasonably
conditioned.
(2) The department shall grant or deny the approval within forty-five calendar days of the receipt of a complete application and notice
of compliance with any applicable requirements of the state
environmental policy act, made in the manner prescribed in this
section. The permit must contain provisions allowing for minor
modifications to the plans and specifications without requiring
reissuance of the permit. The applicant may document receipt of
application by filing in person or by registered mail.
(3) A complete application for an approval shall contain general
plans for the overall project, complete plans and specifications of the
proposed construction or work within ordinary high water line, and
complete plans and specifications for the proper protection of fish
life.
(4)(a) The forty-five day requirement shall be suspended if
(((1))):
(i) After ten working days of receipt of the application, the
applicant remains unavailable or unable to arrange for a timely field
evaluation of the proposed project; (((2)))
(ii) The site is physically inaccessible for inspection; or (((3)))
(iii) The applicant requests delay.
(b) Immediately upon determination that the forty-five day period
is suspended, the department shall notify the applicant in writing of
the reasons for the delay.
(5) An approval shall remain in effect without need for periodic
renewal for projects that divert water for agricultural irrigation or
stock watering purposes and that involve seasonal construction or other
work. Approval for streambank stabilization projects shall remain in
effect without need for periodic renewal if the problem causing the
need for the streambank stabilization occurs on an annual or more
frequent basis. The permittee must notify the appropriate agency
before commencing the construction or other work within the area
covered by the approval.
(6) The permittee must demonstrate substantial progress on
construction of that portion of the project relating to the approval
within two years of the date of issuance.
(7) If the department denies approval, the department shall provide
the applicant, in writing, a statement of the specific reasons why and
how the proposed project would adversely affect fish life. Protection
of fish life shall be the only ground upon which approval may be denied
or conditioned. Issuance, denial, conditioning, or modification shall
be appealable to the hydraulic appeals board established in RCW
43.21B.005 within thirty days of the notice of decision. The burden
shall be upon the department to show that the denial or conditioning of
an approval is solely aimed at the protection of fish life.
(8) The department may, after consultation with the permittee,
modify an approval due to changed conditions. The modifications shall
become effective unless appealed to the hydraulic appeals board within
thirty days from the notice of the proposed modification. The burden
is on the department to show that changed conditions warrant the
modification in order to protect fish life.
(9) A permittee may request modification of an approval due to
changed conditions. The request shall be processed within forty-five
calendar days of receipt of the written request. A decision by the
department may be appealed to the hydraulic appeals board within thirty
days of the notice of the decision. The burden is on the permittee to
show that changed conditions warrant the requested modification and
that such modification will not impair fish life.
(10) In case of an emergency arising from weather or stream flow
conditions or other natural conditions, the department, through its
authorized representatives, shall issue immediately upon request oral
approval for removing any obstructions, repairing existing structures,
restoring stream banks, or to protect property threatened by the stream
or a change in the stream flow without the necessity of obtaining a
written approval prior to commencing work. Conditions of an oral
approval shall be reduced to writing within thirty days and complied
with as provided for in this section.
(11) For purposes of this chapter, "streambank stabilization" shall
include but not be limited to log and debris removal, bank protection
(including riprap, jetties, and groins), gravel removal and erosion
control.
(12) The department shall not require the installation of a self-regulating tide gate as a condition of hydraulic project approval for
maintenance or replacement of agricultural drainage systems under this
section unless the condition is consistent with a salmon recovery plan
adopted according to chapter 77.85 RCW or a plan developed according to
section 12 of this act, the affected landowners and the associated
special taxing districts under RCW 85.38.180 have agreed to the
installation, and all impacts have been fully compensated. Any
condition requiring a self-regulating tide gate to achieve fish passage
in an existing hydraulic project approval may not be enforced.
NEW SECTION. Sec. 5 A new section is added to chapter 77.55 RCW
to read as follows:
The department shall comply with the requirements of this section
when imposing conditions on approvals issued according to RCW 77.55.100
or 77.55.110 or during implementation of fish passage requirements
according to RCW 77.55.060 for any project or work on or related to
drainage infrastructure on lands designated as agricultural lands of
long-term commercial significance according to chapter 36.70A RCW. The
department shall:
(1) Employ a standard of no net loss of agricultural activity on
lands designated as agricultural lands of long-term commercial
significance according to chapter 36.70A RCW when interpreting the
requirements of this section. When assessing the impacts of projects
under this section, the department shall establish mechanisms, create
conditions, and design strategies to effectuate this standard;
(2) Consider the quantity and quality of habitat necessary to
ensure fish protection within the watershed of the work or project
being considered as identified in assessments and plans prepared
pursuant to sections 10 through 12 of this act or chapter 77.85 RCW;
(3) Prepare an environmental assessment of the benefits of the
condition for fish protection and of the impacts to drainage
infrastructure on designated agricultural lands and on public or
private drainage or other infrastructure;
(4) Prepare an economic assessment of the costs of any impacts to
drainage infrastructure on designated agricultural lands identified in
subsection (2) of this section, including loss of agricultural crops or
soil productivity, financial loss associated with crop failure, loss in
market value or other financial impacts to the land, and an economic
assessment of any impacts to or loss of public or private drainage or
other infrastructure;
(5) Identify a source or source of funding of any financial impacts
to designated agricultural lands determined according to subsection (4)
of this section; and
(6) Determine the potential for a voluntary agreement made
according to RCW 77.55.300 to provide adequate fish protection within
the watershed or for habitat restoration programs or efforts within or
outside of the watershed to address fish protection needs.
Sec. 6 RCW 77.55.280 and 2001 c 253 s 54 are each amended to read
as follows:
(1) When a private landowner is applying for hydraulic project
approval under this chapter and that landowner has entered into a
habitat incentives agreement with the department and the department of
natural resources as provided in RCW 77.55.300, the department shall
comply with the terms of that agreement when evaluating the request for
hydraulic project approval.
(2) Chapter . . ., Laws of 2003 (this act) does not limit the
ability of the department and a private landowner or, if applicable, an
associated special taxing district under RCW 85.38.180, to enter into
a voluntary habitat incentives agreement under this section.
Sec. 7 RCW 77.55.290 and 2001 c 253 s 55 are each amended 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 77.95 or 77.100 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. 8 RCW 77.55.300 and 2000 c 107 s 229 are each amended to
read as follows:
(1) ((Beginning in January 1998,)) The department of fish and
wildlife and the department of natural resources shall implement a
habitat incentives program based on the recommendations of federally
recognized Indian tribes, landowners, the regional fisheries
enhancement groups, the timber, fish, and wildlife cooperators, and
other interested parties. The program shall allow a private landowner
to enter into an agreement with the departments to enhance habitat on
the landowner's property for food fish, game fish, or other wildlife
species. In exchange, the landowner shall receive state regulatory
certainty with regard to future applications for hydraulic project
approval or a forest practices permit on the property covered by the
agreement. The overall goal of the program is to provide a mechanism
that facilitates habitat development on private property while avoiding
an adverse state regulatory impact to the landowner at some future
date. A single agreement between the departments and a landowner may
encompass up to one thousand acres. A landowner may enter into
multiple agreements with the departments, provided that the total
acreage covered by such agreements with a single landowner does not
exceed ten thousand acres. The departments are not obligated to enter
into an agreement unless the departments find that the agreement is in
the best interest of protecting fish or wildlife species or their
habitat.
(2) A habitat incentives agreement shall be in writing and shall
contain at least the following: A description of the property covered
by the agreement, an expiration date, a description of the condition of
the property prior to the implementation of the agreement, and other
information needed by the landowner and the departments for future
reference and decisions.
(3) As part of the agreement, the department of fish and wildlife
may stipulate the factors that will be considered when the department
evaluates a landowner's application for hydraulic project approval
under RCW 77.55.100 or 77.55.110 on property covered by the agreement.
The department's identification of these evaluation factors shall be in
concurrence with the department of natural resources and affected
federally recognized Indian tribes. In general, future decisions
related to the issuance, conditioning, or denial of hydraulic project
approval shall be based on the conditions present on the landowner's
property at the time of the agreement, unless all parties agree
otherwise.
(4) As part of the agreement, the department of natural resources
may stipulate the factors that will be considered when the department
evaluates a landowner's application for a forest practices permit under
chapter 76.09 RCW on property covered by the agreement. The
department's identification of these evaluation factors shall be in
concurrence with the department of fish and wildlife and affected
federally recognized Indian tribes. In general, future decisions
related to the issuance, conditioning, or denial of forest practices
permits shall be based on the conditions present on the landowner's
property at the time of the agreement, unless all parties agree
otherwise.
(5) The agreement is binding on and may be used by only the
landowner who entered into the agreement with the department. The
agreement shall not be appurtenant with the land. However, if a new
landowner chooses to maintain the habitat enhancement efforts on the
property, the new landowner and the departments may jointly choose to
retain the agreement on the property.
(6) If the departments receive multiple requests for agreements
with private landowners under the habitat incentives program, the
departments shall prioritize these requests and shall enter into as
many agreements as possible within available budgetary resources.
(7) This section does not abrogate the department's obligation to
prioritize the use of public lands for fish habitat restoration
projects.
(8) This section does not authorize the department to impose
conditions requiring fish habitat restoration either on or affecting
lands designated as agricultural lands of long-term commercial
significance according to chapter 36.70A RCW in any approvals issued
according to RCW 77.55.100 or 77.55.110 or during implementation of
fish passage requirements according to RCW 77.55.060 in the absence of
a voluntary agreement entered into according to this section.
Sec. 9 RCW 77.55.310 and 2001 c 253 s 21 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 77.55.320 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.
(2) This section does not authorize the director to implement or
impose fish habitat restoration conditions either on or affecting lands
designated as agricultural lands of long-term commercial significance
according to chapter 36.70A RCW except as authorized under RCW
77.55.300.
NEW SECTION. Sec. 10 A new section is added to chapter 77.55 RCW
to read as follows:
Upon written request of the affected owners of land designated as
agricultural lands of long-term commercial significance according to
chapter 36.70A RCW or the associated special taxing districts under RCW
85.38.180, the department shall provide for the removal of the self-regulating function of any self-regulating tide gate installed because
of a condition imposed by the department in an approval issued
according to RCW 77.55.100 or 77.55.110 or during implementation of
fish passage requirements according to RCW 77.55.060. The department
shall make the tide gate removal of the self-regulating function of any
self-regulating tide gate a priority and complete the removal within
thirty days of receipt of the request of the owner or the associated
special taxing district under RCW 85.38.180. The department shall pay
for any tide gate removal required by this section within existing
resources.
NEW SECTION. Sec. 11 A new section is added to
chapter 77.55 RCW
to read as follows:
(1) A task force is created that shall be composed of the following
thirteen members and any members identified in subsection (2) of this
section who elect to participate:
(a) Two members of the house of representatives, one from each
major caucus, appointed by the speaker of the house of representatives;
(b) Two members of the senate, one from each major caucus,
appointed by the senate majority leader;
(c) One representative of the fish and wildlife commission,
appointed by the chair of the commission;
(d) Two representatives of the agricultural industry familiar with
agricultural issues in Skagit county, with one appointed by an
organization active in Skagit county and one appointed by a statewide
organization representing the industry;
(e) Two representatives of environmental interest organizations
with familiarity and expertise in agricultural activities and issues
related to approvals issued under this chapter, with one appointed by
a Skagit county organization and the other appointed by a statewide
organization representing environmental interests;
(f) One representative of a Skagit county diking and drainage
district, appointed by the individual districts in Skagit county or by
an association of diking and drainage districts;
(g) One representative of the lead entity for salmon recovery in
Skagit county, appointed by the lead entity;
(h) One representative of Skagit county, appointed by its
legislative authority; and
(i) One representative from the office of the governor.
(2) Representatives of the United States environmental protection
agency, the United States natural resources conservation service, and
tribes with interests in Skagit county shall be invited and encouraged
to participate as members of the task force.
(3) The task force shall convene as soon as possible upon
appointment of its members. The task force shall elect a chair and
adopt rules for conducting the business of the task force. Staff
support for the task force shall be provided by the Washington state
conservation commission.
(4) The task force shall:
(a) Review and analyze the issues identified in section 1 of this
act and the purposes specified in section 1(7) of this act as they
relate to Skagit county to determine the effectiveness of chapter
. . ., Laws of 2003 (this act) in addressing those issues and achieving
those purposes;
(b) Define the scope, nature, and extent of the assessments listed
in section 12 of this act, review the assessments listed in section 13
of this act, develop a methodology to distinguish between facilities in
Skagit county that function as drainage infrastructure and those that
are passages for fish, and recommend statutory and policy changes to
provide fish and wildlife habitat to meet salmon recovery goals while
assuring no net loss of the farmland base;
(c) Identify appropriate demonstration projects on the Skagit
river, the Samish river, Carpenter creek, and Colony creek and provide
direction on project purpose, duration, monitoring, reporting, and
funding; and
(d) Review and analyze the selection, monitoring, and results of
any such demonstration projects.
(5) Legislative members of the task force shall be reimbursed for
travel expenses as provided in RCW 44.04.120. Nonlegislative members
of the task force shall be reimbursed for travel expenses as provided
in RCW 43.03.050 and 43.03.060.
(6) The first meeting of the task force shall be held within thirty
days of the effective date of this act. Beginning in November 2003,
the task force shall provide annual reports to the appropriate
committees of the legislature with its findings and any legislative
recommendations. The task force shall submit a final report and any
legislative recommendations to the appropriate committees of the
legislature by November 30, 2004.
(7) This section expires June 30, 2005.
NEW SECTION. Sec. 12 A new section is added to chapter 77.55 RCW
to read as follows:
(1) The task force may contract with universities, private
consultants, nonprofit groups, or other entities to assist it in
developing a strategy incorporating the following elements:
(a) An inventory of existing tide gates located on streams in
Skagit county. The inventory shall include location, age, type, and
maintenance history of the tide gates and other factors as determined
by the task force, the county, and districts;
(b) An assessment of the role of tide gates located on streams in
Skagit county; the role of tidal fish habitat for various life stages
of salmon; the quantity and characterization of tidal fish habitat
currently accessible to fish; the quantity and characterization of the
present tidal fish habitat created at the time the dikes and outlets
were constructed; the quantity of potential tidal fish habitat on
public lands and alternatives to enhance this habitat; the effects of
salt water intrusion on agricultural land, including the effects of
backfeeding of salt water through the underground drainage system; the
role of tide gates in drainage systems, including relieving excess
water from saturated soil and providing reservoir functions between
tides; the effect of saturated soils on production of crops; the
characteristics of properly functioning tidal fish habitat; the
description of agricultural lands designated by the county as having
long-term commercial significance and the effect of that designation;
and the economic impacts to existing land uses for various alternatives
for tide gate alteration; and
(c) A long-term proposal for fish habitat enhancement to meet the
two goals of salmon recovery and no net loss of agricultural lands.
The proposal shall consider all other means to achieve salmon recovery
without converting farmland. The proposal shall include methods to
increase fish passage and enhance habitat on public lands, voluntary
methods to increase fish passage on private lands, a priority list of
fish passage projects, and recommendations for funding of high priority
projects. The task force also may propose pilot projects that will be
designed to test and measure the success of various proposed
strategies.
(2) This section expires November 30, 2004.
NEW SECTION. Sec. 13 A new section is added to chapter 77.55 RCW
to read as follows:
(1) In conjunction with other public landowners, the department
shall create a salmon habitat restoration plan for all public lands in
Skagit county. The plan shall include a list of public properties that
must be restored for salmon, a description of how those properties can
be altered to support salmon, a description of costs and sources of
funds to restore the property, and a strategy and schedule for
prioritizing the restoration of public lands for salmon habitat.
(2) The department shall make the Skagit public lands salmon
habitat restoration plan a priority and complete it by November 30,
2004.
NEW SECTION. Sec. 14 A new section is added to chapter 77.55 RCW
to read as follows:
As used in this chapter, "tide gate" means a one-way check valve
that prevents the backflow of tidal water.
NEW SECTION. Sec. 15 The legislature does not intend to
appropriate additional funds for the implementation of this act and
expects all affected state agencies to implement this act's provisions
within existing appropriations.
NEW SECTION. Sec. 16 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. 17 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.