BILL REQ. #:  S-1929.1 

Read first time 02/26/2003.   Referred to Committee on Agriculture.

     AN ACT Relating to construction projects in state waters; 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; 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. 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 government, 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 may impair critical salmon habitat, can be 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.
     (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, public and private infrastructure, 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 therefore declares that the purposes of this act are to:
     (a) Affirm the power and duties of drainage district commissioners as stated in RCW 85.06.080;
     (b) 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;
     (c) Prioritize the use of public land for fish habitat restoration projects;
     (d) Create demonstration projects to assess the effectiveness of certain fish passage devices and to test their impact on public land; and
     (e) 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 on or before the effective date of this section or the repair, replacement, or improvement of such tide gates or flood gates.

NEW SECTION.  Sec. 3   A new section is added to chapter 77.55 RCW to read as follows:
     In interpreting the requirements of this chapter, the department shall adopt 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 assessing the impacts of projects under this chapter on designated agricultural lands and when considering the imposition of conditions on department permits or approvals according to this chapter, the department shall establish mechanisms, create conditions, and design strategies to effectuate this standard.

Sec. 4   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 may 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. Any condition requiring fish passage in an existing hydraulic project approval is permanently stayed.

Sec. 5   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 may 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. Any condition requiring fish passage in an existing hydraulic project approval is permanently stayed.

NEW SECTION.  Sec. 6   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 77.55.060, 77.55.100, or 77.55.110 for any project or work on lands designated as agricultural lands of long-term commercial significance according to chapter 36.70A RCW. The department shall:
     (1) Employ the standard of no net loss of agricultural activity on designated agricultural lands in all analyses and decisions as required under section 3 of this act;
     (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 11 through 13 of this act;
     (3) Prepare an environmental assessment of the benefits of the condition for fish protection and of the impacts of the condition on designated agricultural lands and on public or private drainage or other infrastructure;
     (4) Prepare an economic assessment of the costs of any impacts 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;
     (6) Work collaboratively with owners of designated agricultural lands and the associated special taxing districts as defined in RCW 85.38.180 to identify opportunities for compensation and to provide compensation to affected landowners for any financial impacts determined according to subsection (4) of this section; and
     (7) 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. 7   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) Nothing in this act limits the ability of the department or a private landowner to enter into a voluntary habitat incentives agreement under this section. Any such agreement is subject to the requirements of RCW 85.38.180.

Sec. 8   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. 9   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 77.55.060, 77.55.100, or 77.55.110 in the absence of a voluntary agreement entered into according to this section.

Sec. 10   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. 11   A new section is added to chapter 77.55 RCW to read as follows:
     Upon written request of the owner of land designated as agricultural lands of long-term commercial significance according to chapter 36.70A RCW, the department shall provide for the removal of any self-regulating tide gate installed because of a condition imposed by the department in an approval issued according to RCW 77.55.060, 77.55.100, or 77.55.110 or hydraulic project approval for maintenance or replacement of agricultural drainage systems under this section. The department shall make the tide gate removal a priority and complete the removal within ninety days of receipt of the owner's written request. The department shall pay for any tide gate removal required by this section within existing resources.

NEW SECTION.  Sec. 12   (1) A task force is created that is 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 president of the senate;
     (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, appointed by the governor from nominees submitted by organizations representing the industry in the state;
     (e) Two representatives of environmental interest organizations with familiarity and expertise in agricultural activities and issues related to approvals issued under chapter 77.55 RCW, appointed by the governor from nominees submitted by an organization or organizations representing environmental interests. One of those representatives must represent a Skagit county organization;
     (f) One representative of a Skagit county diking and drainage district, appointed by the governor from nominees submitted by either individual districts, or an association of diking and drainage districts, or both;
     (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 nonvoting 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(6) of this act to determine the effectiveness of this act in addressing those issues and achieving those purposes;
     (b) Define the scope, nature, and extent of the assessments listed in section 13 of this act, review the assessments listed in section 13 of this act, develop a methodology to distinguish between facilities that function as drainage infrastructure and those that are passages for fish, and recommend statutory and policy changes to provide fish and wildlife habitat while ensuring that there is no net loss of farmland;
     (c) Identify appropriate demonstration projects 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. The task force shall meet in Skagit county.
     (6) Beginning in December 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 December 31, 2005.

NEW SECTION.  Sec. 13   The task force created in section 12 of this act must rely on university or private consultants to prepare a strategy that incorporates the following elements:
     (1) An inventory of existing tide gates located in Skagit county. The inventory shall include location, age, type, and maintenance history of the tide gates and other factors as determined by Skagit county and the affected districts;
     (2) An assessment of the role of tide gates located 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
     (3) 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 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 lead entity also may propose pilot projects that will be designed to test and measure the success of various proposed strategies.

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   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. 16   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.