READ FIRST TIME 03/05/03.   

     AN ACT Relating to animal feeding operations; amending RCW 90.64.030, 90.64.120, 90.64.150, and 90.48.260; adding a new section to chapter 90.64 RCW; creating new sections; providing an effective date; providing an expiration date; and declaring an emergency.

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

NEW SECTION.  Sec. 1   A livestock nutrient management program is essential to ensuring a healthy and productive livestock industry in Washington state. The goal of the program must be to provide clear guidance to livestock farms as to their responsibilities under state and federal law to protect water quality while maintaining a healthy business climate for these farms. The program should develop reasonable financial assistance resources, educational and technical assistance to meet these responsibilities, and provide for periodic inspection and enforcement actions to ensure compliance with state and federal water quality laws. The legislature intends that by 2006, there will be a fully functioning state program for concentrated animal feeding operations in the state, and that this program will be a single program for all livestock sectors.
     The legislature finds that a livestock nutrient management program is necessary to address the federal rule changes with which livestock operations must comply. Furthermore, budgetary conditions demand efficient and effective governance. In addition, many of the existing requirements and goals for dairy farms will be completed by December 2003, and revisions will be needed.

NEW SECTION.  Sec. 2   (1) A livestock nutrient management program development and oversight committee is created comprised of the following members, appointed as follows:
     (a) The director of the department of agriculture, or the director's designee, who shall serve as committee chair;
     (b) The director of the department of ecology, or the director's designee;
     (c) A representative of the United States environmental protection agency, appointed by the regional director of the agency unless the agency chooses not to be represented on the committee;
     (d) A representative of commercial shellfish growers, nominated by an organization representing these growers, appointed by the governor;
     (e) A representative of an environmental interest organization with familiarity and expertise in water quality issues, appointed by the governor;
     (f) A representative of tribal governments as nominated by an organization representing tribal governments, appointed by the governor;
     (g) A representative of Washington State University appointed by the dean of the college of agriculture and home economics;
     (h) A representative of the Washington association of conservation districts, appointed by the association's board of officers;
     (i) Three representatives of dairy producers nominated by a statewide organization representing dairy producers in the state, appointed by the governor;
     (j) Two representatives of beef cattle producers nominated by a statewide organization representing beef cattle producers in the state, appointed by the governor;
     (k) One representative of poultry producers nominated by a statewide organization representing poultry producers in the state, appointed by the governor;
     (l) One representative of the commercial cattle feedlots nominated by a statewide organization representing commercial cattle feedlots in the state, appointed by the governor; and
     (m) A representative of any other segment of the livestock industry determined by the director of agriculture to be subject to federal rules regulating animal feeding or concentrated animal feeding operations.
     (2) The state department of agriculture shall provide staff for the committee. The department of agriculture may request staff assistance be assigned by the United States environmental protection agency to assist the director in staffing the committee.
     (3) The committee shall establish a work plan that includes a list of tasks and a projected completion date for each task.
     (4) The committee may establish a subcommittee for each of the major industry segments that is covered by the recently adopted federal regulations that pertain to animal feeding operations and concentrated animal feeding operations. The subcommittee shall be composed of selected members of the full committee and additional representatives from that major segment of the livestock industry as determined by the director. The committee shall assign tasks to the subcommittees and shall establish dates for each subcommittee to report back to the full committee.
     (5) The committee shall examine the recently adopted federal regulations that provide for the regulation of animal feeding operations and concentrated animal feeding operations and develop a program to be administered by the department of agriculture that meets the requirements and time frames contained in the federal rules. Elements that the committee shall evaluate include:
     (a) A process for adopting standards and for developing plans for each operation that meet these standards;
     (b) A process for revising current national pollution discharge elimination system permits currently held by livestock operations and to transition these permits into the new system; and
     (c) In consultation with the director, a determination of what other work is needed and what other institutional relationships are needed or desirable. The committee shall consult with representatives of the statewide association of conservation districts regarding any functions or activities that are proposed to be provided through local conservation districts.
     (6) The committee shall review and comment on proposals for grants from the livestock nutrient management account created in RCW 90.64.150.
     (7) The committee shall develop draft proposed legislation that includes:
     (a) Statutory changes, including a time line to achieve the phased-in levels of regulation under federal law, to comply with the minimum requirements under federal law and the minimum requirements under chapter 90.48 RCW. These changes must meet the requirements necessary to enable the department of agriculture and the department of ecology to pursue the United States environmental protection agency's approval of the transfer of the permitting program as it relates to the concentrated animal feeding operations from the department of ecology to the department of agriculture;
     (b) Statutory changes necessitated by the transfer of functions under chapter 90.64 RCW from the department of ecology to the department of agriculture;
     (c) Continued inspection of dairy operations at least once every two years;
     (d) An outreach and education program to inform the various animal feeding operations and concentrated animal feeding operations of the program's elements; and
     (e) Annual reporting to the legislature on the progress of the state strategy for implementing the animal feeding operation and concentrated animal feeding operation.
     (8) The committee shall provide a report by December 1, 2003, to appropriate committees of the legislature that includes the results of the committee's evaluation under subsection (5) of this section and draft legislation to initiate the program.
     (9) This section expires June 30, 2006.

Sec. 3   RCW 90.64.030 and 2002 c 327 s 1 are each amended to read as follows:
     (1) Under the inspection program established in RCW 90.64.023, the department may investigate a dairy farm to determine whether the operation is discharging pollutants or has a record of discharging pollutants into surface or ground waters of the state. Upon concluding an investigation, the department shall make a written report of its findings, including the results of any water quality measurements, photographs, or other pertinent information, and provide a copy of the report to the dairy producer within twenty days of the investigation.
     (2) The department shall investigate a written complaint filed with the department within three working days and shall make a written report of its findings including the results of any water quality measurements, photographs, or other pertinent information. Within twenty days of receiving a written complaint, a copy of the findings shall be provided to the dairy producer subject to the complaint, and to the complainant if the person gave his or her name and address to the department at the time the complaint was filed.
     (3) The department may consider past complaints against the same dairy farm from the same person and the results of its previous inspections, and has the discretion to decide whether to conduct an inspection if:
     (a) The same or a similar complaint or complaints have been filed against the same dairy farm within the immediately preceding six-month period; and
     (b) The department made a determination that the activity that was the subject of the prior complaint was not a violation.
     (4) If the decision of the department is not to conduct an inspection, it shall document the decision and the reasons for the decision within twenty days. The department shall provide the decision to the complainant if the name and address were provided to the department, and to the dairy producer subject to the complaint, and the department shall place the decision in the department's administrative records.
     (5) The report of findings of any inspection conducted as the result of either an oral or a written complaint shall be placed in the department's administrative records. Only findings of violations shall be entered into the data base identified in RCW 90.64.130.
     (6) A dairy farm that is determined to be a significant contributor of pollution based on actual water quality tests, photographs, or other pertinent information is subject to the provisions of this chapter and to the enforcement provisions of chapters 43.05 and 90.48 RCW, including civil penalties levied under RCW 90.48.144.
     (7) If the department determines that an unresolved water quality problem from a dairy farm requires immediate corrective action, the department shall notify the producer and the district in which the problem is located. When corrective actions are required to address such unresolved water quality problems, the department shall provide copies of all final dairy farm inspection reports and documentation of all formal regulatory and enforcement actions taken by the department against that particular dairy farm to the local conservation district and to the appropriate dairy farm within twenty days.
     (8) For a violation of water quality laws that is a first offense for a dairy producer, the penalty may be waived to allow the producer to come into compliance with water quality laws. The department shall record all legitimate violations and subsequent enforcement actions.
     (9) A discharge, including a storm water discharge, to surface waters of the state shall not be considered a violation of this chapter, chapter 90.48 RCW, or chapter 173-201A WAC, and shall therefore not be enforceable by the department of ecology or a third party, if at the time of the discharge, a violation is not occurring under RCW 90.64.010(18). In addition, a dairy producer shall not be held liable for violations of this chapter, chapter 90.48 RCW, chapter 173-201A WAC, or the federal clean water act due to the discharge of dairy nutrients to waters of the state resulting from spreading these materials on lands other than where the nutrients were generated, when the nutrients are spread by persons other than the dairy producer or the dairy producer's agent.
     (10) As provided under RCW 7.48.305, agricultural activities associated with the management of dairy nutrients are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on public health and safety.
     (11) This section specifically acknowledges that if a holder of a general or individual national pollutant discharge elimination system permit complies with the permit and the dairy nutrient management plan conditions for appropriate land application practices, the permit provides compliance with the federal clean water act and acts as a shield against citizen or agency enforcement for any additions of pollutants to waters of the state or of the United States as authorized by the permit.
     (12) A dairy producer who fails to have an approved dairy nutrient management plan by July 1, 2002, or a certified dairy nutrient management plan by December 31, 2003, and for which no appeals have been filed with the pollution control hearings board, is in violation of this chapter. Each month beyond these deadlines that a dairy producer is out of compliance with the requirement for either plan approval or plan certification shall be considered separate violations of chapter 90.64 RCW that may be subject to penalties. Such penalties may not exceed one hundred dollars per month for each violation up to a combined total of five thousand dollars. The department has discretion in imposing penalties for failure to meet deadlines for plan approval or plan certification if the failure to comply is due to lack of state funding for implementation of the program. Failure to register as required in RCW 90.64.017 shall subject a dairy producer to a maximum penalty of one hundred dollars. Penalties shall be levied by the department.

Sec. 4   RCW 90.64.120 and 1993 c 221 s 13 are each amended to read as follows:
     (1) Nothing in this chapter shall affect the ((department's)) department of ecology's authority or responsibility to administer or enforce the national pollutant discharge elimination system permits for operators of concentrated dairy animal feeding operations, where required by federal regulations or to administer the provisions of chapter 90.48 RCW.
     (2) Unless the department of ecology delegates its authority under chapter 90.48 RCW to the department of agriculture pursuant to RCW 90.48.260, and until any such delegation of authority receives federal approval, the transfer specified in section 6 of this act shall not preclude the department of ecology from taking action related to animal feeding operations or concentrated animal feeding operations to protect water quality pursuant to its authority in chapter 90.48 RCW. Before taking such actions, the department of ecology shall notify the department of agriculture.

Sec. 5   RCW 90.64.150 and 1998 c 262 s 15 are each amended to read as follows:
     The ((dairy waste)) livestock nutrient management account is created in the custody of the state treasurer. All receipts from monetary penalties levied pursuant to violations of this chapter must be deposited into the account. Expenditures from the account may be used only ((for the commission)) to provide grants ((to local conservation districts for the sole purpose of assisting dairy producers to develop and fully implement dairy nutrient management plans)) for research or education proposals that assist livestock operations to achieve compliance with state and federal water quality laws. The director of agriculture shall accept and prioritize research proposals and education proposals. Only the ((chairman of the commission)) director or the ((chairman's)) director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION.  Sec. 6   A new section is added to chapter 90.64 RCW to read as follows:
     (1) All powers, duties, and functions of the department of ecology pertaining to chapter 90.64 RCW are transferred to the department of agriculture. All references to the director of ecology or the department of ecology in the Revised Code of Washington shall be construed to mean the director of agriculture or the department of agriculture when referring to the functions transferred in this section.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of ecology pertaining to the powers, functions, and duties transferred shall be delivered to the custody of the department of agriculture. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the department of ecology in carrying out the powers, functions, and duties transferred shall be made available to the department of agriculture. All funds, credits, or other assets held in connection with the powers, functions, and duties transferred shall be assigned to the department of agriculture.
     (b) Any appropriations made to the department of ecology for carrying out the powers, functions, and duties transferred shall, on the effective date of this section, be transferred and credited to the department of agriculture.
     (c) Whenever any question arises as to the transfer of any funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All rules and all pending business before the department of ecology pertaining to the powers, functions, and duties transferred shall be continued and acted upon by the department of agriculture. All existing contracts and obligations shall remain in full force and shall be performed by the department of agriculture.
     (4) The transfer of the powers, duties, and functions of the department of ecology shall not affect the validity of any act performed before the effective date of this section.
     (5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

Sec. 7   RCW 90.48.260 and 1988 c 220 s 1 are each amended to read as follows:
     The department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the federal clean water act as it exists on February 4, 1987, and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act. With regard to the national estuary program established by section 320 of that act, the department shall exercise its responsibility jointly with the Puget Sound water quality authority. The department of ecology may delegate its authority under this chapter, including its national pollutant discharge elimination permit system authority and duties regarding animal feeding operations and concentrated animal feeding operations, to the department of agriculture through a memorandum of understanding. Until any such delegation receives federal approval, the department of agriculture's adoption or issuance of animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives pertaining to water quality shall be accomplished after reaching agreement with the director of the department of ecology. Adoption or issuance and implementation shall be accomplished so that compliance with such animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives will achieve compliance with all federal and state water pollution control laws. The powers granted herein include, among others, and notwithstanding any other provisions of chapter 90.48 RCW or otherwise, the following:
     (1) Complete authority to establish and administer a comprehensive state point source waste discharge or pollution discharge elimination permit program which will enable the department to qualify for full participation in any national waste discharge or pollution discharge elimination permit system and will allow the department to be the sole agency issuing permits required by such national system operating in the state of Washington subject to the provisions of RCW 90.48.262(2). Program elements authorized herein may include, but are not limited to: (a) Effluent treatment and limitation requirements together with timing requirements related thereto; (b) applicable receiving water quality standards requirements; (c) requirements of standards of performance for new sources; (d) pretreatment requirements; (e) termination and modification of permits for cause; (f) requirements for public notices and opportunities for public hearings; (g) appropriate relationships with the secretary of the army in the administration of his responsibilities which relate to anchorage and navigation, with the administrator of the environmental protection agency in the performance of his duties, and with other governmental officials under the federal clean water act; (h) requirements for inspection, monitoring, entry, and reporting; (i) enforcement of the program through penalties, emergency powers, and criminal sanctions; (j) a continuing planning process; and (k) user charges.
     (2) The power to establish and administer state programs in a manner which will insure the procurement of moneys, whether in the form of grants, loans, or otherwise; to assist in the construction, operation, and maintenance of various water pollution control facilities and works; and the administering of various state water pollution control management, regulatory, and enforcement programs.
     (3) The power to develop and implement appropriate programs pertaining to continuing planning processes, area-wide waste treatment management plans, and basin planning.
     The governor shall have authority to perform those actions required of him or her by the federal clean water act.

NEW SECTION.  Sec. 8   Such actions as are necessary to make the appointments to the committee created in section 2 of this act shall be taken before July 1, 2003, to make the appointments on that date.

NEW SECTION.  Sec. 9   Sections 2 and 6 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 2003.