BILL REQ. #: H-3408.2
| State of Washington | 59th Legislature | 2006 Regular Session |
Read first time 01/12/2006. Referred to Committee on Natural Resources, Ecology & Parks.
AN ACT Relating to integrating the forest practices act and hydraulic project approvals by authorizing the department of natural resources to approve certain hydraulic projects; amending RCW 77.55.021, 76.09.050, and 76.09.030; and adding a new section to chapter 77.55 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 77.55.021 and 2005 c 146 s 201 are each amended to
read as follows:
(1) Except as provided in RCW 77.55.031, 77.55.051, and 77.55.041,
in the event that any person or government agency desires to undertake
a hydraulic project, the person or government agency shall, before
commencing work thereon, secure the approval of the department for all
projects not falling within the scope of section 2 of this act, or the
department of natural resources if the project falls within the scope
of section 2 of this act, in the form of a permit as to the adequacy of
the means proposed for the protection of fish life.
(2) A complete written application for a permit may be submitted in
person or by registered mail and must contain the following:
(a) General plans for the overall project;
(b) Complete plans and specifications of the proposed construction
or work within the mean higher high water line in saltwater or within
the ordinary high water line in freshwater;
(c) Complete plans and specifications for the proper protection of
fish life; and
(d) Notice of compliance with any applicable requirements of the
state environmental policy act, unless otherwise provided for in this
chapter.
(3)(a) Protection of fish life is the only ground upon which
approval of a permit may be denied or conditioned. Approval of a
permit may not be unreasonably withheld or unreasonably conditioned.
Except as provided in this subsection and subsections (8), (10), and
(11) of this section, the department has forty-five calendar days upon
receipt of a complete application to grant or deny approval of a
permit. The forty-five day requirement is 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;
(iii) The applicant requests a delay; or
(iv) The department is issuing a permit for a storm water discharge
and is complying with the requirements of RCW 77.55.161(3)(b).
(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.
(c) The period of forty-five calendar days may be extended if the
permit is part of a multiagency permit streamlining effort and all
participating permitting agencies and the permit applicant agree to an
extended timeline longer than forty-five calendar days.
(4) If the department denies approval of a permit, the department
shall provide the applicant a written statement of the specific reasons
why and how the proposed project would adversely affect fish life.
Issuance, denial, conditioning, or modification of a permit shall be
appealable to the department or the board as specified in RCW 77.55.301
within thirty days of the notice of decision, or as specified in
section 2 of this act if the project falls within the scope of section
2 of this act.
(5)(a) The permittee must demonstrate substantial progress on
construction of that portion of the project relating to the permit
within two years of the date of issuance.
(b) Approval of a permit is valid for a period of up to five years
from the date of issuance, except as provided in (c) of this subsection
and in RCW 77.55.151.
(c) A permit remains in effect without need for periodic renewal
for hydraulic projects that divert water for agricultural irrigation or
stock watering purposes and that involve seasonal construction or other
work. A permit for streambank stabilization projects to protect farm
and agricultural land as defined in RCW 84.34.020 remains 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 permit.
(6) The department may, after consultation with the permittee,
modify a permit due to changed conditions. The modification becomes
effective unless appealed to the department or the board as specified
in RCW 77.55.301 within thirty days from the notice of the proposed
modification. For hydraulic projects that divert water for
agricultural irrigation or stock watering purposes, or when the
hydraulic project or other work is associated with streambank
stabilization to protect farm and agricultural land as defined in RCW
84.34.020, the burden is on the department to show that changed
conditions warrant the modification in order to protect fish life.
(7) A permittee may request modification of a permit due to changed
conditions. The request must be processed within forty-five calendar
days of receipt of the written request. A decision by the department
may be appealed to the board within thirty days of the notice of the
decision. For hydraulic projects that divert water for agricultural
irrigation or stock watering purposes, or when the hydraulic project or
other work is associated with streambank stabilization to protect farm
and agricultural land as defined in RCW 84.34.020, the burden is on the
permittee to show that changed conditions warrant the requested
modification and that such a modification will not impair fish life.
(8) The department or the county legislative authority may declare
and continue an emergency. The county legislative authority shall
immediately notify the department if it declares an emergency under
this subsection. The department, through its authorized
representatives, shall issue immediately, upon request, oral approval
for a stream crossing, or work to remove any obstructions, repair
existing structures, restore streambanks, protect fish life, or protect
property threatened by the stream or a change in the stream flow
without the necessity of obtaining a written permit prior to commencing
work. Conditions of the emergency oral permit must be established by
the department and reduced to writing within thirty days and complied
with as provided for in this chapter. 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.
(9) All state and local agencies with authority under this chapter
to issue permits or other authorizations in connection with emergency
water withdrawals and facilities authorized under RCW 43.83B.410 shall
expedite the processing of such permits or authorizations in keeping
with the emergency nature of such requests and shall provide a decision
to the applicant within fifteen calendar days of the date of
application.
(10) The department or the county legislative authority may
determine an imminent danger exists. The county legislative authority
shall notify the department, in writing, if it determines that an
imminent danger exists. In cases of imminent danger, the department
shall issue an expedited written permit, upon request, for work to
remove any obstructions, repair existing structures, restore banks,
protect fish resources, or protect property. Expedited permit requests
require a complete written application as provided in subsection (2) of
this section and must 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. 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.
(11) 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.
Expedited permit requests require a complete written application as
provided in subsection (2) of this section and must 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. 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.
NEW SECTION. Sec. 2 A new section is added to chapter 77.55 RCW
to read as follows:
(1) The department of natural resources is the lead agency in
approving hydraulic projects under this chapter if the project is a
necessary element of a forest practices application submitted pursuant
to RCW 76.09.060. The department of natural resources must follow the
applicable processes, standards, rules, and requirements provided by
this chapter for the department of fish and wildlife when reviewing,
conditioning, and approving hydraulic projects.
(2) The department of natural resources may consult with employees
of the department of fish and wildlife or fund a biologist employed by
the department of fish and wildlife. However, the department of
natural resources shall maintain both the final decision over project
applications and the timeline for reaching a final decision.
(3) The forest practices appeals board created in RCW 76.09.210 has
exclusive jurisdiction to hear appeals arising from the approval,
denial, conditioning, or modification of hydraulic project approvals
made by the department of natural resources under this section.
Sec. 3 RCW 76.09.050 and 2005 c 146 s 1003 are each amended to
read as follows:
(1) The board shall establish by rule which forest practices shall
be included within each of the following classes:
Class I: Minimal or specific forest practices that have no direct
potential for damaging a public resource and that may be conducted
without submitting an application or a notification except that when
the regulating authority is transferred to a local governmental entity,
those Class I forest practices that involve timber harvesting or road
construction within "urban growth areas," designated pursuant to
chapter 36.70A RCW, are processed as Class IV forest practices, but are
not subject to environmental review under chapter 43.21C RCW;
Class II: Forest practices which have a less than ordinary
potential for damaging a public resource that may be conducted without
submitting an application and may begin five calendar days, or such
lesser time as the department may determine, after written notification
by the operator, in the manner, content, and form as prescribed by the
department, is received by the department. However, the work may not
begin until all forest practice fees required under RCW 76.09.065 have
been received by the department. Class II shall not include forest
practices:
(a) On lands platted after January 1, 1960, as provided in chapter
58.17 RCW or on lands that have or are being converted to another use;
(b) Which require approvals by the department under the provisions
of ((the hydraulics act,)) RCW 77.55.021 and section 2 of this act;
(c) Within "shorelines of the state" as defined in RCW 90.58.030;
(d) Excluded from Class II by the board; or
(e) Including timber harvesting or road construction within "urban
growth areas," designated pursuant to chapter 36.70A RCW, which are
Class IV;
Class III: Forest practices other than those contained in Class I,
II, or IV. A Class III application must be approved or disapproved by
the department within thirty calendar days from the date the department
receives the application. However, the applicant may not begin work on
that forest practice until all forest practice fees required under RCW
76.09.065 have been received by the department;
Class IV: Forest practices other than those contained in Class I
or II: (a) On lands platted after January 1, 1960, as provided in
chapter 58.17 RCW, (b) on lands that have or are being converted to
another use, (c) on lands which, pursuant to RCW 76.09.070 as now or
hereafter amended, are not to be reforested because of the likelihood
of future conversion to urban development, (d) involving timber
harvesting or road construction on lands that are contained within
"urban growth areas," designated pursuant to chapter 36.70A RCW, except
where the forest landowner provides: (i) A written statement of intent
signed by the forest landowner not to convert to a use other than
commercial forest product operations for ten years, accompanied by
either a written forest management plan acceptable to the department or
documentation that the land is enrolled under the provisions of chapter
84.33 RCW; or (ii) a conversion option harvest plan approved by the
local governmental entity and submitted to the department as part of
the application, and/or (e) which have a potential for a substantial
impact on the environment and therefore require an evaluation by the
department as to whether or not a detailed statement must be prepared
pursuant to the state environmental policy act, chapter 43.21C RCW.
Such evaluation shall be made within ten days from the date the
department receives the application: PROVIDED, That nothing herein
shall be construed to prevent any local or regional governmental entity
from determining that a detailed statement must be prepared for an
action pursuant to a Class IV forest practice taken by that
governmental entity concerning the land on which forest practices will
be conducted. A Class IV application must be approved or disapproved
by the department within thirty calendar days from the date the
department receives the application, unless the department determines
that a detailed statement must be made, in which case the application
must be approved or disapproved by the department within sixty calendar
days from the date the department receives the application, unless the
commissioner of public lands, through the promulgation of a formal
order, determines that the process cannot be completed within such
period. However, the applicant may not begin work on that forest
practice until all forest practice fees required under RCW 76.09.065
have been received by the department.
Forest practices under Classes I, II, and III are exempt from the
requirements for preparation of a detailed statement under the state
environmental policy act.
(2) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, no Class
II, Class III, or Class IV forest practice shall be commenced or
continued after January 1, 1975, unless the department has received a
notification with regard to a Class II forest practice or approved an
application with regard to a Class III or Class IV forest practice
containing all information required by RCW 76.09.060 as now or
hereafter amended. However, in the event forest practices regulations
necessary for the scheduled implementation of this chapter and RCW
90.48.420 have not been adopted in time to meet such schedules, the
department shall have the authority to regulate forest practices and
approve applications on such terms and conditions consistent with this
chapter and RCW 90.48.420 and the purposes and policies of RCW
76.09.010 until applicable forest practices regulations are in effect.
(3) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, if a
notification or application is delivered in person to the department by
the operator or the operator's agent, the department shall immediately
provide a dated receipt thereof. In all other cases, the department
shall immediately mail a dated receipt to the operator.
(4) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, forest
practices shall be conducted in accordance with the forest practices
regulations, orders and directives as authorized by this chapter or the
forest practices regulations, and the terms and conditions of any
approved applications.
(5) Except for those forest practices being regulated by local
governmental entities as provided elsewhere in this chapter, the
department of natural resources shall notify the applicant in writing
of either its approval of the application or its disapproval of the
application and the specific manner in which the application fails to
comply with the provisions of this section or with the forest practices
regulations. Except as provided otherwise in this section, if the
department fails to either approve or disapprove an application or any
portion thereof within the applicable time limit, the application shall
be deemed approved and the operation may be commenced: PROVIDED, That
this provision shall not apply to applications which are neither
approved nor disapproved pursuant to the provisions of subsection (7)
of this section: PROVIDED, FURTHER, That if seasonal field conditions
prevent the department from being able to properly evaluate the
application, the department may issue an approval conditional upon
further review within sixty days: PROVIDED, FURTHER, That the
department shall have until April 1, 1975, to approve or disapprove an
application involving forest practices allowed to continue to April 1,
1975, under the provisions of subsection (2) of this section. Upon
receipt of any notification or any satisfactorily completed application
the department shall in any event no later than two business days after
such receipt transmit a copy to the departments of ecology and fish and
wildlife, and to the county, city, or town in whose jurisdiction the
forest practice is to be commenced. Any comments by such agencies
shall be directed to the department of natural resources.
(6) For those forest practices regulated by the board and the
department, if the county, city, or town believes that an application
is inconsistent with this chapter, the forest practices regulations, or
any local authority consistent with RCW 76.09.240 as now or hereafter
amended, it may so notify the department and the applicant, specifying
its objections.
(7) For those forest practices regulated by the board and the
department, the department shall not approve portions of applications
to which a county, city, or town objects if:
(a) The department receives written notice from the county, city,
or town of such objections within fourteen business days from the time
of transmittal of the application to the county, city, or town, or one
day before the department acts on the application, whichever is later;
and
(b) The objections relate to lands either:
(i) Platted after January 1, 1960, as provided in chapter 58.17
RCW; or
(ii) On lands that have or are being converted to another use.
The department shall either disapprove those portions of such
application or appeal the county, city, or town objections to the
appeals board. If the objections related to subparagraphs (b)(i) and
(ii) of this subsection are based on local authority consistent with
RCW 76.09.240 as now or hereafter amended, the department shall
disapprove the application until such time as the county, city, or town
consents to its approval or such disapproval is reversed on appeal.
The applicant shall be a party to all department appeals of county,
city, or town objections. Unless the county, city, or town either
consents or has waived its rights under this subsection, the department
shall not approve portions of an application affecting such lands until
the minimum time for county, city, or town objections has expired.
(8) For those forest practices regulated by the board and the
department, in addition to any rights under the above paragraph, the
county, city, or town may appeal any department approval of an
application with respect to any lands within its jurisdiction. The
appeals board may suspend the department's approval in whole or in part
pending such appeal where there exists potential for immediate and
material damage to a public resource.
(9) For those forest practices regulated by the board and the
department, appeals under this section shall be made to the appeals
board in the manner and time provided in RCW 76.09.220(8). In such
appeals there shall be no presumption of correctness of either the
county, city, or town or the department position.
(10) For those forest practices regulated by the board and the
department, the department shall, within four business days notify the
county, city, or town of all notifications, approvals, and disapprovals
of an application affecting lands within the county, city, or town,
except to the extent the county, city, or town has waived its right to
such notice.
(11) For those forest practices regulated by the board and the
department, a county, city, or town may waive in whole or in part its
rights under this section, and may withdraw or modify any such waiver,
at any time by written notice to the department.
(12) Notwithstanding subsections (2) through (5) of this section,
forest practices applications or notifications are not required for
exotic insect and disease control operations conducted in accordance
with RCW 76.09.060(8) where eradication can reasonably be expected.
Sec. 4 RCW 76.09.030 and 2003 c 39 s 32 are each amended to read
as follows:
(1) There is hereby created the forest practices board of the state
of Washington as an agency of state government consisting of members as
follows:
(a) The commissioner of public lands or the commissioner's
designee;
(b) The director of the department of community, trade, and
economic development or the director's designee;
(c) The director of the department of agriculture or the director's
designee;
(d) The director of the department of ecology or the director's
designee;
(e) The director of the department of fish and wildlife or the
director's designee;
(f) An elected member of a county legislative authority appointed
by the governor: PROVIDED, That such member's service on the board
shall be conditioned on the member's continued service as an elected
county official; and
(g) Six members of the general public appointed by the governor,
one of whom shall be an owner of not more than five hundred acres of
forest land, and one of whom shall be an independent logging
contractor.
(2) ((The director of the department of fish and wildlife's service
on the board may be terminated two years after August 18, 1999, if the
legislature finds that after two years the department has not made
substantial progress toward integrating the laws, rules, and programs
governing forest practices, chapter 76.09 RCW, and the laws, rules, and
programs governing hydraulic projects, chapter 77.55 RCW. Such a
finding shall be based solely on whether the department of fish and
wildlife makes substantial progress as defined in this subsection, and
will not be based on other actions taken as a member of the board.
Substantial progress shall include recommendations to the legislature
for closer integration of the existing rule-making authorities of the
board and the department of fish and wildlife, and closer integration
of the forest practices and hydraulics permitting processes, including
exploring the potential for a consolidated permitting process. These
recommendations shall be designed to resolve problems currently
associated with the existing dual regulatory and permitting processes.)) The members of the initial board appointed by the governor
shall be appointed so that the term of one member shall expire December
31, 1975, the term of one member shall expire December 31, 1976, the
term of one member shall expire December 31, 1977, the terms of two
members shall expire December 31, 1978, and the terms of two members
shall expire December 31, 1979. Thereafter, each member shall be
appointed for a term of four years. Vacancies on the board shall be
filled in the same manner as the original appointments. Each member of
the board shall continue in office until his or her successor is
appointed and qualified. The commissioner of public lands or the
commissioner's designee shall be the ((
(3)chairman)) chair of the board.
(((4))) (3) The board shall meet at such times and places as shall
be designated by the ((chairman)) chair or upon the written request of
the majority of the board. The principal office of the board shall be
at the state capital.
(((5))) (4) Members of the board, except public employees and
elected officials, shall be compensated in accordance with RCW
43.03.250. Each member shall be entitled to reimbursement for travel
expenses incurred in the performance of their duties as provided in RCW
43.03.050 and 43.03.060.
(((6))) (5) The board may employ such clerical help and staff
pursuant to chapter 41.06 RCW as is necessary to carry out its duties.