BILL REQ. #:  H-0168.2 

Read first time 01/17/2007.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to an emergency preparedness pilot program for flood control; amending RCW 77.55.021; creating new sections; and providing an expiration date.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that floods are an issue of emergency preparedness in this state and pose threats to public health and to public and private property including:
     (a) Loss or endangerment of human life;
     (b) Loss of public and private property;
     (c) Damage to homes, farms, and other structures;
     (d) Damage to fisheries and fish habitat;
     (e) Damage to public roads, bridges, and other infrastructure;
     (f) Destruction or degradation of environmentally sensitive areas;
     (g) Erosion of land and stream banks and beds; and
     (h) Reduction of water quality.
     (2) The legislature further finds that:
     (a) The prevention of flood damage to public and private property is a matter of public concern;
     (b) Projects that prevent and minimize flood damage may be planned and approved in advance of the time that a flood occurs. However, there are also emergencies requiring immediate project approval; and
     (c) Many projects designed to protect public and private property from flood damage are not approved due to conflicts with existing permitting and regulatory requirements.
     (3) The legislature therefore finds that a pilot program must be developed for projects in select water resource inventory areas to demonstrate and evaluate methods for authorizing flood control projects that protect public and private property, protect or enhance habitat, and protect fish life.

NEW SECTION.  Sec. 2   (1) An emergency preparedness flood control and stream bank restoration pilot program is authorized to demonstrate flood control projects that protect property, protect or enhance habitat, and protect fish life.
     (a) County legislative authorities within water resource inventory areas three, four, five, and seven shall administer the pilot program. The department of fish and wildlife shall delegate authority to approve hydraulic project approvals to the county legislative authority for projects selected for the pilot program. In determining permit approval, the county legislative authority shall give equal consideration to the protection of human life, public land or private property, and fish life.
     (b) The pilot program must test permit approval processes for flood control and stream bank restoration projects and the effect of approving projects designed to protect property, protect or enhance habitat, and protect fish life. The objectives of the pilot program include identifying:
     (i) Methods for expediting and coordinating permit decision-making processes for flood control and stream bank restoration projects that involve multiple jurisdictions and state agencies;
     (ii) Impediments during the permitting process for project approval including conflicts with existing policies, rules, and laws; and
     (iii) Differences between projects designed to protect property, protect or enhance habitat, and protect fish life. The analysis shall give equal consideration to the protection of human life, public land or private property, and fish life.
     (2) The pilot program must consist of up to ten projects in each participating county within watershed resource inventory areas three, four, five, and seven.
     (3)(a) The departments of ecology, fish and wildlife, and natural resources shall participate in the pilot program. The department of ecology shall act as the lead agency among the state agencies and shall coordinate among the state agencies as necessary. The department of fish and wildlife shall provide technical assistance to project proponents to assist in developing projects that both protect property and protect or enhance fish life. The department of natural resources shall provide technical assistance with projects involving aquatic use permits and removal of sand or gravel from aquatic lands.
     (b) The department of ecology shall notify each of the eligible counties of the pilot program, describe the nature of the pilot program, and invite county participation. When a county receives an application for a project that will require permits or authorizations from multiple jurisdictions, and in the county's judgment the proposed project offers an appropriate opportunity to test the pilot program's intent under subsection (1) of this section, the county, with the approval of the project applicant, may include the project as part of the pilot program.
     (c) In selecting projects for the pilot program, the county shall provide an opportunity to test and evaluate a variety of projects, including but not limited to dredging, stream bank stabilization, and dike construction or repair.
     (d) When a project has been selected for inclusion in the pilot program, the county shall schedule an initial coordination meeting and contact all appropriate agencies and the project applicant. Other local jurisdictions, including but not limited to cities, diking districts, and flood management districts, shall be invited to participate when a project is selected for inclusion in the pilot program and those jurisdictions have a role in the permitting process.
     The purpose of the coordination meeting is to:
     (i) Identify all necessary permit requirements;
     (ii) Determine the sequence of permitting decisions and opportunities where those decisions can be made concurrently;
     (iii) Determine a timeline for the decisions and how those decisions can be expedited; and
     (iv) Work with the applicant to make sure that he or she understands how the process will work, what the applicant is responsible for, and when those responsibilities must be met in order to adhere to the overall permitting timeline.
     (4) The department of ecology, in cooperation with the participating counties, other participating local jurisdictions, and state agencies, shall submit a final report on the pilot program to the appropriate committees of the legislature by December 1, 2009. The report shall include an assessment of the degree to which the pilot program achieved the objectives identified in subsection (1) of this section.

Sec. 3   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, and section 2 of this act, 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 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.
     (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.
     (12) This section expires June 30, 2010.