READ FIRST TIME 03/03/05.   

     AN ACT Relating to creating the department of archaeology and historic preservation; amending RCW 43.17.020, 27.34.020, 27.34.070, 27.34.230, 27.34.330, 27.34.342, 27.34.344, 27.53.020, 27.53.030, 27.53.070, 27.53.080, and 27.53.095; reenacting and amending RCW 43.17.010; adding a new section to chapter 41.06 RCW; adding a new chapter to Title 43 RCW; repealing RCW 27.34.210, 27.34.310, and 27.34.320; and providing an expiration date.

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

NEW SECTION.  Sec. 1   (1) There is created a department of state government to be known as the department of archaeology and historic preservation. The department is vested with all powers and duties transferred to it under this chapter and such other powers and duties as may be authorized by law.
     (2) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (a) "Department" means the department of archaeology and historic preservation.
     (b) "Director" means the director of the department of archaeology and historic preservation.

NEW SECTION.  Sec. 2   The executive head and appointing authority of the department is the director. The director shall serve as the state historic preservation officer, and shall have a background in program administration, an active involvement in historic preservation, and a knowledge of the national, state, and local preservation programs as they affect the state of Washington. The director shall be appointed by the governor, with the consent of the senate, and serves at the pleasure of the governor. The director shall be paid a salary to be fixed by the governor in accordance with RCW 43.03.040. If a vacancy occurs in the position while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate.

NEW SECTION.  Sec. 3   It is the intent of the legislature wherever possible to place the internal affairs of the department under the control of the director in order that the director may institute therein the flexible, alert, and intelligent management of its business that changing contemporary circumstances require. Therefore, whenever the director's authority is not specifically limited by law, the director has complete charge and supervisory powers over the department. The director may create such administrative structures as the director considers appropriate, except as otherwise specified by law. The director may employ such assistants and personnel as necessary for the general administration of the department. This employment shall be in accordance with the state civil service law, chapter 41.06 RCW, except as otherwise provided.

NEW SECTION.  Sec. 4   If necessary, the department may be subdivided into divisions. Except as otherwise specified or as federal requirements may differently require, divisions shall be established and organized in accordance with plans to be prepared by the director and approved by the governor. In preparing the plans, the director shall endeavor to promote efficient public management and to improve programs.

NEW SECTION.  Sec. 5   The director shall appoint a deputy director, a department personnel director, and assistant directors as needed to administer the department. The deputy director is responsible for the general supervision of the department in the absence or disability of the director and, in case of a vacancy in the office of director, shall continue in charge of the department until a successor is appointed and qualified, or until the governor appoints an acting director.

NEW SECTION.  Sec. 6   Any power or duty vested in or transferred to the director by law or executive order may be delegated by the director to the deputy director or to any other assistant or subordinate; but the director is responsible for the official acts of the officers and employees of the department.

NEW SECTION.  Sec. 7   The director may appoint advisory committees or councils as required by any federal legislation as a condition to the receipt of federal funds by the department. The director may also appoint statewide committees or councils on those subject matters as are or come within the department's responsibilities. The statewide committees and councils shall have representation from both major political parties and shall have substantial consumer representation. The committees or councils shall be constituted as required by federal law or as the director may determine. The members of the committees or councils shall hold office as follows: One-third to serve one year; one-third to serve two years; and one-third to serve three years. Upon expiration of the original terms, subsequent appointments shall be for three years except in the case of a vacancy, in which event appointment shall be only for the remainder of the unexpired term for which the vacancy occurs. No member may serve more than two consecutive terms.
     Members of such state advisory committees or councils may be paid their travel expenses in accordance with RCW 43.03.050 and 43.03.060.

NEW SECTION.  Sec. 8   In furtherance of the policy of the state to cooperate with the federal government in all of the programs under the jurisdiction of the department, rules as may become necessary to entitle the state to participate in federal funds may be adopted, unless expressly prohibited by law. Any internal reorganization carried out under the terms of this chapter shall meet federal requirements that are a necessary condition to state receipt of federal funds. Any section or provision of law dealing with the department that may be susceptible to more than one construction shall be interpreted in favor of the construction most likely to comply with federal laws entitling this state to receive federal funds for the various programs of the department. If any law dealing with the department is ruled to be in conflict with federal requirements that are a prescribed condition of the allocation of federal funds to the state, or to any departments or agencies thereof, the conflicting part is declared to be inoperative solely to the extent of the conflict.

NEW SECTION.  Sec. 9   A new section is added to chapter 41.06 RCW to read as follows:
     In addition to the exemptions under RCW 41.06.070, this chapter does not apply in the department of archaeology and historic preservation to the director, the director's personal secretary, the deputy director, all division directors and assistant directors, and one confidential secretary for each of these officers.

Sec. 10   RCW 43.17.010 and 1993 sp.s. c 2 s 16, 1993 c 472 s 17, and 1993 c 280 s 18 are each reenacted and amended to read as follows:
     There shall be departments of the state government which shall be known as (1) the department of social and health services, (2) the department of ecology, (3) the department of labor and industries, (4) the department of agriculture, (5) the department of fish and wildlife, (6) the department of transportation, (7) the department of licensing, (8) the department of general administration, (9) the department of community, trade, and economic development, (10) the department of veterans affairs, (11) the department of revenue, (12) the department of retirement systems, (13) the department of corrections, ((and)) (14) the department of health, ((and)) (15) the department of financial institutions, and (16) the department of archaeology and historic preservation, which shall be charged with the execution, enforcement, and administration of such laws, and invested with such powers and required to perform such duties, as the legislature may provide.

Sec. 11   RCW 43.17.020 and 1995 1st sp.s. c 2 s 2 are each amended to read as follows:
     There shall be a chief executive officer of each department to be known as: (1) The secretary of social and health services, (2) the director of ecology, (3) the director of labor and industries, (4) the director of agriculture, (5) the director of fish and wildlife, (6) the secretary of transportation, (7) the director of licensing, (8) the director of general administration, (9) the director of community, trade, and economic development, (10) the director of veterans affairs, (11) the director of revenue, (12) the director of retirement systems, (13) the secretary of corrections, ((and)) (14) the secretary of health, ((and)) (15) the director of financial institutions, and (16) the director of the department of archaeology and historic preservation.
     Such officers, except the secretary of transportation and the director of fish and wildlife, shall be appointed by the governor, with the consent of the senate, and hold office at the pleasure of the governor. The secretary of transportation shall be appointed by the transportation commission as prescribed by RCW 47.01.041. The director of fish and wildlife shall be appointed by the fish and wildlife commission as prescribed by RCW 77.04.055.

NEW SECTION.  Sec. 12   (1) The office of archaeology and historic preservation is hereby abolished and its powers, duties, and functions are hereby transferred to the department of archaeology and historic preservation.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the office of archaeology and historic preservation shall be delivered to the custody of the department of archaeology and historic preservation. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the office of archaeology and historic preservation shall be made available to the department of archaeology and historic preservation. All funds, credits, or other assets held by the office of archaeology and historic preservation shall be assigned to the department of archaeology and historic preservation.
     (b) Any appropriations made to the office of archaeology and historic preservation shall, on the effective date of this section, be transferred and credited to the department of archaeology and historic preservation.
     (c) If any question arises as to the transfer of any personnel, 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 employees of the office of archaeology and historic preservation are transferred to the jurisdiction of the department of archaeology and historic preservation. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department of archaeology and historic preservation to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.
     (4) All rules and all pending business before the office of archaeology and historic preservation shall be continued and acted upon by the department of archaeology and historic preservation. All existing contracts and obligations shall remain in full force and shall be performed by the department of archaeology and historic preservation.
     (5) The transfer of the powers, duties, functions, and personnel of the office of archaeology and historic preservation shall not affect the validity of any act performed before the effective date of this section.
     (6) 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.
     (7) Nothing contained in this section may be construed to alter any existing collective bargaining unit or the provisions of any existing collective bargaining agreement until the agreement has expired or until the bargaining unit has been modified by action of the personnel resources board as provided by law.

Sec. 13   RCW 27.34.020 and 1995 c 399 s 13 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:
     (1) "Advisory council" means the advisory council on historic preservation.
     (2) "Department" means the department of ((community, trade, and economic development)) archaeology and historic preservation.
     (3) "Director" means the director of ((community, trade, and economic development)) the department of archaeology and historic preservation.
     (4) "Federal act" means the national historic preservation act of 1966 (Public Law 89-655; 80 Stat. 915).
     (5) "Heritage council" means the Washington state heritage council.
     (6) "Historic preservation" includes the protection, rehabilitation, restoration, identification, scientific excavation, and reconstruction of districts, sites, buildings, structures, and objects significant in American and Washington state history, architecture, archaeology, or culture.
     (7) (("Office" means the office of archaeology and historic preservation within the department.
     (8))) "Preservation officer" means the state historic preservation officer as provided for in ((RCW 27.34.210)) section 2 of this act.
     (((9))) (8) "Project" means programs leading to the preservation for public benefit of historical properties, whether by state and local governments or other public bodies, or private organizations or individuals, including the acquisition of title or interests in, and the development of, any district, site, building, structure, or object that is significant in American and Washington state history, architecture, archaeology, or culture, and property used in connection therewith, or for its development.
     (((10))) (9) "State historical agencies" means the state historical societies ((and the office of archaeology and historic preservation within)) and the department.
     (((11))) (10) "State historical societies" means the Washington state historical society and the eastern Washington state historical society.
     (((12))) (11) "Cultural resource management plan" means a comprehensive plan which identifies and organizes information on the state of Washington's historic, archaeological, and architectural resources into a set of management criteria, and which is to be used for producing reliable decisions, recommendations, and advice relative to the identification, evaluation, and protection of these resources.

Sec. 14   RCW 27.34.070 and 1983 c 91 s 7 are each amended to read as follows:
     (1) Each state historical society is designated a trustee for the state whose powers and duties include but are not limited to the following:
     (a) To collect, catalog, preserve, and interpret objects, manuscripts, sites, photographs, and other materials illustrative of the cultural, artistic, and natural history of this state;
     (b) To operate state museums and assist and encourage cultural and historical studies and museum interpretive efforts throughout the state, including those sponsored by local historical organizations, and city, county, and state agencies;
     (c) To engage in cultural, artistic, and educational activities, including classes, exhibits, seminars, workshops, and conferences if these activities are related to the basic purpose of the society;
     (d) To plan for and conduct celebrations of significant events in the history of the state of Washington and to give assistance to and coordinate with state agencies, local governments, and local historical organizations in planning and conducting celebrations;
     (e) To create one or more classes of membership in the society;
     (f) To engage in the sale of various articles which are related to the basic purpose of the society;
     (g) To engage in appropriate fund-raising activities for the purpose of increasing the self-support of the society;
     (h) To accept gifts, grants, conveyances, bequests, and devises, of real or personal property, or both, in trust or otherwise, and sell, lease, exchange, invest, or expend the same or the proceeds, rents, profits, and income therefrom except as limited by the donor's terms. The governing boards of the state historical societies shall adopt rules to govern and protect the receipt and expenditure of the proceeds, rents, profits, and income of all such gifts, grants, conveyances, bequests, and devises;
     (i) To accept on loan or lend objects of historical interest, and sell, exchange, divest itself of, or refuse to accept, items which do not enhance the collection; and
     (j) To charge general or special admission fees to its museums or exhibits and to waive or decrease such fees as it finds appropriate((; and
     (k) To work with the heritage council in developing the plan under RCW 27.34.050)).
     (2) All objects, sites, manuscripts, photographs, and all property, including real property, now held or hereafter acquired by the state historical societies shall be held by the societies in trust for the use and benefit of the people of Washington state.

Sec. 15   RCW 27.34.230 and 1986 c 266 s 12 are each amended to read as follows:
     The director or the director's designee shall:
     (1) ((Submit the budget requests for the office to the heritage council for review and comment;
     (2))) Receive, administer, and disburse such gifts, grants, and endowments from private sources as may be made in trust or otherwise for the purposes of RCW 27.34.200 through ((27.34.290)) 27.34.220 or the federal act; and
     (((3))) (2) Develop and implement a cultural resource management plan.

Sec. 16   RCW 27.34.330 and 1999 c 295 s 2 are each amended to read as follows:
     The Washington state historical society shall establish a competitive process to solicit proposals for and prioritize heritage capital projects for potential funding in the state capital budget. The society shall adopt rules governing project eligibility and evaluation criteria. Application for funding of specific projects may be made to the society by local governments, public development authorities, nonprofit corporations, tribal governments, and other entities, as determined by the society. The society, with the advice of leaders in the heritage field, including but not limited to representatives from the office of the secretary of state, the eastern Washington state historical society, and the ((state office of archaeology and historic preservation)) department, shall establish and submit a prioritized list of heritage capital projects to the governor and the legislature in the society's biennial capital budget request. The list shall include a description of each project, the amount of recommended state funding, and documentation of nonstate funds to be used for the project. The total amount of recommended state funding for projects on a biennial project list shall not exceed four million dollars. The department may provide an additional alternate project list which shall not exceed five hundred thousand dollars. The prioritized list shall be developed through open and public meetings and the amount of state funding shall not exceed thirty-three percent of the total cost of the project. The nonstate portion of the total project cost may include cash, the value of real property when acquired solely for the purpose of the project, and in-kind contributions. The department shall not sign contracts or otherwise financially obligate funds under this section until the legislature has approved a specific list of projects. In contracts for grants authorized under this section, the society shall include provisions requiring that capital improvements be held by the grantee for a specified period of time appropriate to the amount of the grant and that facilities be used for the express purpose of the grant. If the grantee is found to be out of compliance with provisions of the contract, the grantee shall repay to the state general fund the principal amount of the grant plus interest calculated at the rate of interest on state of Washington general obligation bonds issued most closely to the date of authorization of the grant.

Sec. 17   RCW 27.34.342 and 1999 c 35 s 1 are each amended to read as follows:
     The Lewis and Clark bicentennial advisory committee is created under the auspices of the Washington state historical society. The committee shall consist of ((fifteen)) sixteen members, as follows:
     (1) Six citizen members, at least three of whom must be enrolled members of a Washington Indian tribe, who shall be appointed by the governor;
     (2) The president of the Washington state historical society;
     (3) The director of the Washington state parks and recreation commission;
     (4) The secretary of the Washington state department of transportation;
     (5) The director of the Washington state department of community, trade, and economic development;
     (6) Four members of the Washington state legislature, one from each caucus in the senate and the house of representatives as designated by each caucus; ((and))
     (7) The chair of the Lewis and Clark trail advisory committee; and
     (8) The director of the department of archaeology and historic preservation.

Sec. 18   RCW 27.34.344 and 1999 c 35 s 2 are each amended to read as follows:
     (1) The Lewis and Clark bicentennial (([advisory])) advisory committee shall coordinate and provide guidance to Washington's observance of the bicentennial of the Lewis and Clark expedition. The committee may:
     (a) Cooperate with national, regional, statewide, and local events promoting the bicentennial;
     (b) Assist, plan, or conduct bicentennial events;
     (c) Engage in or encourage fund-raising activities including revenue-generating enterprises, as well as the solicitation of charitable gifts, grants, or donations;
     (d) Promote public education concerning the importance of the Lewis and Clark expedition in American history, including the role of native people in making the expedition a success;
     (e) Coordinate interagency participation in the observance; and
     (f) Perform other related duties.
     (2) The committee is attached to the Washington state historical society for administrative purposes. Accordingly, the society shall:
     (a) Direct and supervise the budgeting, recordkeeping, reporting, and related administrative and clerical functions of the committee;
     (b) Include the committee's budgetary requests in the society's departmental budget;
     (c) Collect all nonappropriated revenues for the committee and deposit them in the proper fund or account;
     (d) Provide staff support for the committee;
     (e) Print and disseminate for the committee any required notices, rules, or orders adopted by the committee; and
     (f) Allocate or otherwise provide office space to the committee as may be necessary.

Sec. 19   RCW 27.53.020 and 2002 c 211 s 2 are each amended to read as follows:
     The discovery, identification, excavation, and study of the state's archaeological resources, the providing of information on archaeological sites for their nomination to the state and national registers of historic places, the maintaining of a complete inventory of archaeological sites and collections, and the providing of information to state, federal, and private construction agencies regarding the possible impact of construction activities on the state's archaeological resources, are proper public functions; and the ((office)) department of archaeology and historic preservation, created under the authority of chapter ((39.34)) 43.-- RCW (sections 1 through 8 and 12 of this act), is hereby designated as an appropriate agency to carry out these functions. The director((, in consultation with the office of archaeology and historic preservation,)) shall provide guidelines for the selection of depositories designated by the state for archaeological resources. The legislature directs that there shall be full cooperation amongst the department((, the office of archaeology and historic preservation,)) and other agencies of the state.

Sec. 20   RCW 27.53.030 and 1995 c 399 s 16 are each amended to read as follows:
     ((Unless the context clearly requires otherwise,)) The definitions ((contained)) in this section ((shall)) apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Archaeology" means systematic, scientific study of man's past through material remains.
     (2) "Archaeological object" means an object that comprises the physical evidence of an indigenous and subsequent culture including material remains of past human life including monuments, symbols, tools, facilities, and technological by-products.
     (3) "Archaeological site" means a geographic locality in Washington, including but not limited to, submerged and submersible lands and the bed of the sea within the state's jurisdiction, that contains archaeological objects.
     (4) "Department" means the department of ((community, trade, and economic development)) archaeology and historic preservation, created in chapter 43.-- RCW (sections 1 through 8 and 12 of this act).
     (5) "Director" means the director of ((community, trade, and economic development or the director's designee)) the department of archaeology and historic preservation, created in chapter 43.-- RCW (sections 1 through 8 and 12 of this act).
     (6) "Historic" means peoples and cultures who are known through written documents in their own or other languages. As applied to underwater archaeological resources, the term historic shall include only those properties which are listed in or eligible for listing in the Washington State Register of Historic Places (RCW 27.34.220) or the National Register of Historic Places as defined in the National Historic Preservation Act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended.
     (7) "Prehistoric" means peoples and cultures who are unknown through contemporaneous written documents in any language.
     (8) "Professional archaeologist" means a person who has met the educational, training, and experience requirements of the society of professional archaeologists.
     (9) "Qualified archaeologist" means a person who has had formal training and/or experience in archaeology over a period of at least three years, and has been certified in writing to be a qualified archaeologist by two professional archaeologists.
     (10) "Amateur society" means any organization composed primarily of persons who are not professional archaeologists, whose primary interest is in the archaeological resources of the state, and which has been certified in writing by two professional archaeologists.
     (11) "Historic archaeological resources" means those properties which are listed in or eligible for listing in the Washington State Register of Historic Places (RCW 27.34.220) or the National Register of Historic Places as defined in the National Historic Preservation Act of 1966 (Title 1, Sec. 101, Public Law 89-665; 80 Stat. 915; 16 U.S.C. Sec. 470) as now or hereafter amended.

Sec. 21   RCW 27.53.070 and 1975-'76 2nd ex.s. c 82 s 3 are each amended to read as follows:
     It is the declared intention of the legislature that field investigations on privately owned lands should be discouraged except in accordance with both the provisions and spirit of this chapter and persons having knowledge of the location of archaeological sites or resources are encouraged to communicate such information to the ((Washington archaeological research center)) department. Such information shall not constitute a public record which requires disclosure pursuant to the exception authorized in RCW 42.17.310, as now or hereafter amended, to avoid site depredation.

Sec. 22   RCW 27.53.080 and 2002 c 211 s 5 are each amended to read as follows:
     (1) Qualified or professional archaeologists, in performance of their duties, may enter upon public lands of the state of Washington and its political subdivisions after first notifying the entity responsible for managing those public lands, at such times and in such manner as not to interfere with the normal management thereof, for the purposes of doing archaeological resource location and evaluation studies, including site sampling activities. The results of such studies shall be provided to the state agency or political subdivision responsible for such lands and the ((office of archaeology and historic preservation)) department and are confidential unless the director, in writing, declares otherwise. Scientific excavations are to be carried out only after appropriate agreement has been made between a professional archaeologist or an institution of higher education and the agency or political subdivision responsible for such lands. A copy of such agreement shall be filed with the ((office of archaeology and historic preservation and by them to the)) department.
     (2) Amateur societies may engage in such activities by submitting and having approved by the responsible agency or political subdivision a written proposal detailing the scope and duration of the activity. Before approval, a proposal from an amateur society shall be submitted to the ((office of archaeology and historic preservation)) department for review and recommendation. The approving agency or political subdivision shall impose conditions on the scope and duration of the proposed activity necessary to protect the archaeological resources and ensure compliance with applicable federal, state, and local laws. The findings and results of activities authorized under this section shall be made known to the approving agency or political subdivision approving the activities and to the ((office of archaeology and historic preservation)) department.

Sec. 23   RCW 27.53.095 and 2002 c 211 s 4 are each amended to read as follows:
     (1) Persons found to have violated this chapter, either by a knowing and willful failure to obtain a permit where required under RCW 27.53.060 or by a knowing and willful failure to comply with the provisions of a permit issued by the director where required under RCW 27.53.060, in addition to other remedies as provided for by law, may be subject to one or more of the following:
     (a) Reasonable investigative costs incurred by a mutually agreed upon independent professional archaeologist investigating the alleged violation;
     (b) Reasonable site restoration costs; and
     (c) Civil penalties, as determined by the director, in an amount of not more than five thousand dollars per violation.
     (2) Any person incurring the penalty may file an application for an adjudicative proceeding and may pursue subsequent review as provided in chapter 34.05 RCW and applicable rules of the department ((of community, trade, and economic development)).
     (3) Any penalty imposed by final order following an adjudicative proceeding becomes due and payable upon service of the final order.
     (4) The attorney general may bring an action in the name of the department in the superior court of Thurston county or of any county in which the violator may do business to collect any penalty imposed under this chapter and to enforce subsection (5) of this section.
     (5) Any and all artifacts in possession of a violator shall become the property of the state until proper identification of artifact ownership may be determined by the director.
     (6) Penalties overturned on appeal entitle the appealing party to fees and other expenses, including reasonable attorneys' fees, as provided in RCW 4.84.350.

NEW SECTION.  Sec. 24   The following acts or parts of acts are each repealed:
     (1) RCW 27.34.210 (Office of archaeology and historic preservation -- Preservation officer -- Qualifications) and 1995 c 399 s 14, 1986 c 266 s 10, & 1983 c 91 s 11;
     (2) RCW 27.34.310 (Inventory of state-owned properties -- Definitions) and 1995 c 399 s 15 & 1993 c 325 s 3; and
     (3) RCW 27.34.320 (Inventory of state-owned properties -- Procedure -- Grants) and 1993 c 325 s 4.

NEW SECTION.  Sec. 25   Sections 1 through 8 and 12 of this act constitute a new chapter in Title 43 RCW.

NEW SECTION.  Sec. 26   Sections 16 through 18 of this act expire June 30, 2007.