BILL REQ. #:  H-0056.3 

Read first time 02/02/2007.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to the right to farm; amending RCW 64.06.022, 70.94.640, 90.48.080, 36.70A.030, 36.70A.175, and 90.48.020; reenacting and amending RCW 7.48.305; adding a new section to chapter 90.48 RCW; adding a new section to chapter 90.64 RCW; adding a new chapter to Title 15 RCW; recodifying RCW 7.48.305, 7.48.315, 7.48.320, and 7.48.905; and repealing RCW 7.48.300, 7.48.310, and 90.48.450.

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

NEW SECTION.  Sec. 101   This chapter may be known and cited as the Washington right to farm act.

NEW SECTION.  Sec. 102   The legislature finds that the state's agricultural industry is diversified, productive, and a major contributor to the Washington economy. Urban and rural communities statewide benefit from the direct and indirect jobs, income, and revenues generated by agricultural production. Agricultural land is essential to providing citizens with food and fiber and to ensuring aesthetic values through the preservation of open spaces. However, the legislature also finds that excessive government regulation can cause agricultural land to be converted to nonagricultural uses, and that inconsistencies between federal and state regulations can cause confusion for those persons affected. In addition, agricultural activities conducted on farmland are often subjected to nuisance lawsuits that encourage and even force the premature removal of the lands from agricultural uses. The legislature further finds that for the agricultural industry to survive, farms must be able to adopt new technologies and to diversify into new products. The legislature intends with this chapter that agricultural activities conducted on farmland that are consistent with good agricultural practices will be protected from excessive, inconsistent regulation by government and from nuisance lawsuits.

NEW SECTION.  Sec. 103   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Agricultural activity" means the growing, raising, or production of horticultural or viticultural crops, berries, poultry, livestock, shellfish, grain, mint, hay, and dairy products, and conditions or activities that occur on a farm in connection with the commercial production of farm products, including but not limited to: Marketed produce at roadside stands or farm markets; noise; odors; dust; fumes; operation of machinery and irrigation pumps; movement including, but not limited to, use of current county road ditches, streams, rivers, canals, and drains, and use of water for agricultural activities; ground and aerial application of seed, fertilizers, conditioners, and plant protection products; employment and use of labor; roadway movement of equipment and livestock; protection from damage by wildlife; prevention of trespass; construction and maintenance of buildings, fences, roads, bridges, ponds, drains, waterways, and similar features and maintenance of streambanks and watercourses; and conversion from one agricultural activity to another.
     (2) "Agricultural storm water" or "storm water runoff" means any precipitation-related discharge of manure, litter, or process wastewater from land areas where the manure, litter, or process wastewater has been applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of nutrients.
     (3) "Farm" means the land, buildings, freshwater ponds, freshwater culturing and growing facilities, and machinery used in the commercial production of farm products.
     (4) "Farm product" means those plants and animals useful to humans and includes, but is not limited to, forages and sod crops, dairy and dairy products, poultry and poultry products, livestock including breeding, grazing, and recreational equine use, fruits, vegetables, flowers, seeds, grasses, trees, freshwater fish and fish products, apiaries, equine and other similar products, or any other product that incorporates the use of food, feed, fiber, or fur.
     (5) "Farmland" means land or freshwater ponds devoted primarily to the production, for commercial purposes, of livestock, freshwater aquacultural, or other agricultural commodities.
     (6) "Forest practice" has the same meaning as in RCW 76.09.020.
     (7) "Fugitive dust" means a particulate emission made airborne by human activity, forces of wind, or both, that do not pass through a stack, chimney, vent, or other functionally equivalent opening.
     (8) "Good agricultural practices" means economically feasible practices which are customary among or appropriate to farms and ranches of a similar nature in the local area.

Sec. 104   RCW 7.48.305 and 1992 c 151 s 1 and 1992 c 52 s 3 are each reenacted and amended to read as follows:
     ((Notwithstanding any other provision of this chapter,)) (1) Agricultural activities conducted on farmland and forest practices, if consistent with good agricultural and forest practices ((and established prior to surrounding nonagricultural and nonforestry activities)), are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety.
     (2) If those agricultural activities and forest practices are undertaken in conformity with all applicable laws and rules, the activities are presumed to be good agricultural and forest practices not adversely affecting the public health and safety for purposes of this ((section and RCW 7.48.300)) chapter. An agricultural activity that is in conformity with such laws and rules shall not be restricted as to the hours of the day or day or days of the week during which it may be conducted.
     (3) Nothing in this section shall affect or impair any right to sue for damages.

NEW SECTION.  Sec. 105   (1) Odors or fugitive dust caused by agricultural activity consistent with good agricultural practices on agricultural land are exempt from the requirements of chapter 70.94 RCW unless they have a substantial adverse effect on public health. In determining whether agricultural activity is consistent with good agricultural practices, the department of ecology or board of any authority shall consult with a recognized third-party expert in the activity prior to issuing any notice of violation.
     (2) Any notice of violation issued under chapter 70.94 RCW pertaining to odors or fugitive dust caused by agricultural activity shall include a statement as to why the activity is inconsistent with good agricultural practices, or a statement that the odors or fugitive dust have substantial adverse effect on public health.
     (3) In any appeal to the pollution control hearings board or any judicial appeal, the agency issuing a final order pertaining to odors or fugitive dust caused by agricultural activity shall prove the activity is inconsistent with good agricultural practices or that the odors or fugitive dust have a substantial adverse impact on public health.
     (4) The exemption in this section does not apply:
     (a) If a person engaged in agricultural activity on a contiguous piece of agricultural land sells or has sold a portion of that land for residential purposes;
     (b) To facilities subject to RCW 70.94.151 as specified in WAC 173-400-100 as of July 24, 2005, 70.94.152, or 70.94.161.
     (5) As used in this section, "agricultural land" means at least five acres of land devoted primarily to the commercial production of livestock, agricultural commodities, or cultured aquatic products.

NEW SECTION.  Sec. 106   A seller of real property, as defined in chapter 64.06 RCW, shall make available to the buyer the following statement: "This notice is to inform you that the real property you are considering for purchase may lie in close proximity to a farm. The operation of a farm involves usual and customary agricultural practices, which are protected under chapter 15.-- RCW (sections 101 through 103, 105 through 110, and 301 of this act), the Washington right to farm act."

NEW SECTION.  Sec. 107   Organic matter or inorganic matter discharged into any waters of the state as a result of an agricultural activity is exempt from the prohibition in RCW 90.48.080.

NEW SECTION.  Sec. 108   No permit system pertaining to sources of pollution arising from agricultural storm water may be authorized and no civil or criminal penalties may be imposed with respect to any agricultural activities conducted in full compliance with the applicable provisions of chapters 90.64 and 90.48 RCW, any rules adopted thereunder, and any applicable approvals or directives of the department of ecology.

NEW SECTION.  Sec. 109   The definitions of "wetland" or "wetlands" in RCW 36.70A.030(21) and 36.70A.175 do not include wetlands converted to agricultural use before December 23, 1985, in accordance with the federal food security act of 1985 (99 Stat. 1354), unless they are converted to a nonagricultural use, at which time they are subject to a new delineation and the provisions of chapter 36.70A RCW.

NEW SECTION.  Sec. 110   The definition of "waters of the state" in RCW 90.48.020 may not be construed to include wetlands converted to agricultural use before December 23, 1985, in accordance with the federal food security act of 1985 (99 Stat. 1354), unless they are converted to a nonagricultural use, at which time they are subject to a new delineation and the provisions of chapter 90.48 RCW.

NEW SECTION.  Sec. 111   The following acts or parts of acts are each repealed:
     (1) RCW 7.48.300 (Agricultural activities and forest practices--Legislative finding and purpose) and 1992 c 52 s 2 & 1979 c 122 s 1;
     (2) RCW 7.48.310 (Agricultural activities and forest practices--Definitions) and 1992 c 52 s 4, 1991 c 317 s 2, & 1979 c 122 s 3; and
     (3) RCW 90.48.450 (Discharges from agricultural activity--Consideration to be given as to whether enforcement action would contribute to conversion of land to nonagricultural use -- Minimize the possibility) and 1981 c 297 s 31.

Sec. 201   RCW 64.06.022 and 2006 c 77 s 1 are each amended to read as follows:
     A seller of real property shall make available to the buyer the ((following)) statement((: "This notice is to inform you that the real property you are considering for purchase may lie in close proximity to a farm. The operation of a farm involves usual and customary agricultural practices, which are protected under RCW 7.48.305, the Washington right to farm act.")) required in section 106 of this act.

Sec. 202   RCW 70.94.640 and 2005 c 511 s 4 are each amended to read as follows:
     (((1))) As provided in section 105 of this act, odors or fugitive dust caused by agricultural activity ((consistent with good agricultural practices on agricultural land)) are exempt from the requirements of this chapter ((unless they have a substantial adverse effect on public health. In determining whether agricultural activity is consistent with good agricultural practices, the department of ecology or board of any authority shall consult with a recognized third-party expert in the activity prior to issuing any notice of violation.
     (2) Any notice of violation issued under this chapter pertaining to odors or fugitive dust caused by agricultural activity shall include a statement as to why the activity is inconsistent with good agricultural practices, or a statement that the odors or fugitive dust have substantial adverse effect on public health.
     (3) In any appeal to the pollution control hearings board or any judicial appeal, the agency issuing a final order pertaining to odors or fugitive dust caused by agricultural activity shall prove the activity is inconsistent with good agricultural practices or that the odors or fugitive dust have a substantial adverse impact on public health.
     (4) If a person engaged in agricultural activity on a contiguous piece of agricultural land sells or has sold a portion of that land for residential purposes, the exemption of this section shall not apply.
     (5) As used in this section:
     (a) "Agricultural activity" means the growing, raising, or production of horticultural or viticultural crops, berries, poultry, livestock, shellfish, grain, mint, hay, and dairy products.
     (b) "Good agricultural practices" means economically feasible practices which are customary among or appropriate to farms and ranches of a similar nature in the local area.
     (c) "Agricultural land" means at least five acres of land devoted primarily to the commercial production of livestock, agricultural commodities, or cultured aquatic products.
     (d) "Fugitive dust" means a particulate emission made airborne by human activity, forces of wind, or both, and which do not pass through a stack, chimney, vent, or other functionally equivalent opening.
     (6) The exemption for fugitive dust provided in subsection (1) of this section does not apply to facilities subject to RCW 70.94.151 as specified in WAC 173-400-100 as of July 24, 2005, 70.94.152, or 70.94.161)).

Sec. 203   RCW 90.48.080 and 1987 c 109 s 126 are each amended to read as follows:
     Except as provided in section 107 of this act, it shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters according to the determination of the department, as provided for in this chapter.

Sec. 204   RCW 36.70A.030 and 2005 c 423 s 2 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Adopt a comprehensive land use plan" means to enact a new comprehensive land use plan or to update an existing comprehensive land use plan.
     (2) "Agricultural land" means land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.
     (3) "City" means any city or town, including a code city.
     (4) "Comprehensive land use plan," "comprehensive plan," or "plan" means a generalized coordinated land use policy statement of the governing body of a county or city that is adopted pursuant to this chapter.
     (5) "Critical areas" include the following areas and ecosystems: (a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.
     (6) "Department" means the department of community, trade, and economic development.
     (7) "Development regulations" or "regulation" means the controls placed on development or land use activities by a county or city, including, but not limited to, zoning ordinances, critical areas ordinances, shoreline master programs, official controls, planned unit development ordinances, subdivision ordinances, and binding site plan ordinances together with any amendments thereto. A development regulation does not include a decision to approve a project permit application, as defined in RCW 36.70B.020, even though the decision may be expressed in a resolution or ordinance of the legislative body of the county or city.
     (8) "Forest land" means land primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production, including Christmas trees subject to the excise tax imposed under RCW 84.33.100 through 84.33.140, and that has long-term commercial significance. In determining whether forest land is primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production, the following factors shall be considered: (a) The proximity of the land to urban, suburban, and rural settlements; (b) surrounding parcel size and the compatibility and intensity of adjacent and nearby land uses; (c) long-term local economic conditions that affect the ability to manage for timber production; and (d) the availability of public facilities and services conducive to conversion of forest land to other uses.
     (9) "Geologically hazardous areas" means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns.
     (10) "Long-term commercial significance" includes the growing capacity, productivity, and soil composition of the land for long-term commercial production, in consideration with the land's proximity to population areas, and the possibility of more intense uses of the land.
     (11) "Minerals" include gravel, sand, and valuable metallic substances.
     (12) "Public facilities" include streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, domestic water systems, storm and sanitary sewer systems, parks and recreational facilities, and schools.
     (13) "Public services" include fire protection and suppression, law enforcement, public health, education, recreation, environmental protection, and other governmental services.
     (14) "Recreational land" means land so designated under RCW 36.70A.1701 and that, immediately prior to this designation, was designated as agricultural land of long-term commercial significance under RCW 36.70A.170. Recreational land must have playing fields and supporting facilities existing before July 1, 2004, for sports played on grass playing fields.
     (15) "Rural character" refers to the patterns of land use and development established by a county in the rural element of its comprehensive plan:
     (a) In which open space, the natural landscape, and vegetation predominate over the built environment;
     (b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas;
     (c) That provide visual landscapes that are traditionally found in rural areas and communities;
     (d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat;
     (e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;
     (f) That generally do not require the extension of urban governmental services; and
     (g) That are consistent with the protection of natural surface water flows and ground water and surface water recharge and discharge areas.
     (16) "Rural development" refers to development outside the urban growth area and outside agricultural, forest, and mineral resource lands designated pursuant to RCW 36.70A.170. Rural development can consist of a variety of uses and residential densities, including clustered residential development, at levels that are consistent with the preservation of rural character and the requirements of the rural element. Rural development does not refer to agriculture or forestry activities that may be conducted in rural areas.
     (17) "Rural governmental services" or "rural services" include those public services and public facilities historically and typically delivered at an intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, transportation and public transit services, and other public utilities associated with rural development and normally not associated with urban areas. Rural services do not include storm or sanitary sewers, except as otherwise authorized by RCW 36.70A.110(4).
     (18) "Urban growth" refers to growth that makes intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources, rural uses, rural development, and natural resource lands designated pursuant to RCW 36.70A.170. A pattern of more intensive rural development, as provided in RCW 36.70A.070(5)(d), is not urban growth. When allowed to spread over wide areas, urban growth typically requires urban governmental services. "Characterized by urban growth" refers to land having urban growth located on it, or to land located in relationship to an area with urban growth on it as to be appropriate for urban growth.
     (19) "Urban growth areas" means those areas designated by a county pursuant to RCW 36.70A.110.
     (20) "Urban governmental services" or "urban services" include those public services and public facilities at an intensity historically and typically provided in cities, specifically including storm and sanitary sewer systems, domestic water systems, street cleaning services, fire and police protection services, public transit services, and other public utilities associated with urban areas and normally not associated with rural areas.
     (21) "Wetland" or "wetlands" means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites((,)) including, but not limited to((,)): Irrigation and drainage ditches((,)); grass-lined swales((,)); canals((,)); detention facilities((,)); wastewater treatment facilities((,)); farm ponds((,)); wetlands converted to agricultural use, as provided in section 109 of this act; and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands.

Sec. 205   RCW 36.70A.175 and 1995 c 382 s 12 are each amended to read as follows:
     Wetlands regulated under development regulations adopted pursuant to this chapter shall be delineated in accordance with the manual adopted by the department pursuant to RCW 90.58.380, except wetlands converted to agricultural use, as provided in section 109 of this act.

Sec. 206   RCW 90.48.020 and 2002 c 161 s 4 are each amended to read as follows:
     (1) Whenever the word "person" is used in this chapter, it shall be construed to include any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual or any other entity whatsoever.
     (2) Wherever the words "waters of the state" shall be used in this chapter, they shall be construed to include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and watercourses within the jurisdiction of the state of Washington, but shall not be construed to include wetlands converted to agricultural use, as provided in section 110 of this act.
     (3) Whenever the word "pollution" is used in this chapter, it shall be construed to mean such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.
     (4) Wherever the word "department" is used in this chapter it shall mean the department of ecology.
     (5) Whenever the word "director" is used in this chapter it shall mean the director of ecology.
     (6) Whenever the words "aquatic noxious weed" are used in this chapter, they have the meaning prescribed under RCW 17.26.020.
     (7) Whenever the words "general sewer plan" are used in this chapter they shall be construed to include all sewerage general plans, sewer general comprehensive plans, plans for a system of sewerage, and other plans for sewer systems adopted by a local government entity including but not limited to cities, towns, public utility districts, and water-sewer districts.
     (8) Whenever the words "agricultural storm water" or "storm water runoff" are used in this chapter they shall have the same meaning as that contained in section 103(2) of this act.

NEW SECTION.  Sec. 207   A new section is added to chapter 90.48 RCW to read as follows:
     No permit system pertaining to sources of pollution arising from agricultural storm water may be authorized and no civil or criminal penalties may be imposed with respect to any agricultural activities conducted as provided in section 108 of this act.

NEW SECTION.  Sec. 208   A new section is added to chapter 90.64 RCW to read as follows:
     No permit system pertaining to sources of pollution arising from agricultural storm water may be authorized and no civil or criminal penalties may be imposed with respect to any agricultural activities conducted as provided in section 108 of this act.

NEW SECTION.  Sec. 301   Part headings used in this act are not any part of the law.

NEW SECTION.  Sec. 302   Sections 101 through 103, 105 through 110, and 301 of this act constitute a new chapter in Title 15 RCW.

NEW SECTION.  Sec. 303   The following sections are each recodified in the following order in the new chapter created in section 302 of this act.
     RCW 7.48.305 after section 103 of this act
     RCW 7.48.315 before section 105 of this act
     RCW 7.48.320 before section 105 of this act
     RCW 7.48.905

NEW SECTION.  Sec. 304   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.