BILL REQ. #:  H-1989.1 

Read first time 02/13/2007.   Referred to Committee on Local Government.

     AN ACT Relating to addressing the application of the growth management act to certain agricultural activities occurring on agricultural lands; amending RCW 36.70A.030, 36.70A.060, 36.70A.280, and 36.70A.190; adding a new section to chapter 36.70A RCW; creating new sections; and providing an expiration date.

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

NEW SECTION.  Sec. 1   The legislature finds that the goals of the state's growth management act rightfully include both protection of the environment and the maintenance and enhancement of natural resource-based industries, including timber, agriculture, and fisheries. The legislature acknowledges the importance of local governments adopting development regulations that protect critical areas on agricultural lands. The legislature also acknowledges the efforts of landowners and operators who develop and implement farm plans governing agricultural activities on agricultural lands. The legislature finds that there have been and continue to be a considerable number of legal challenges brought before the growth management hearings boards and the courts concerning regulations protecting critical areas and their application to agricultural lands. The legislature therefore finds it necessary to initiate short and longer-term actions to identify, consider, reduce, and resolve issues causing conflicts between agricultural activities occurring on agricultural lands and development regulations that protect critical areas.

Sec. 2   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 activities" means agricultural uses and practices including, but not limited to: Producing, breeding, or increasing agricultural products; rotating and changing agricultural crops; allowing land used for agricultural activities to lie fallow in which it is plowed and tilled but left unseeded; allowing land used for agricultural activities to lie dormant as a result of adverse agricultural market conditions; allowing land used for agricultural activities to lie dormant because the land is enrolled in a local, state, or federal conservation program, or the land is subject to a conservation easement; conducting agricultural operations; maintaining, repairing, and replacing agricultural equipment; maintaining, repairing, and replacing agricultural facilities, when the replacement facility is no closer to the shoreline than the original facility; and maintaining agricultural lands under production or cultivation.
     (3) "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))) (4) "City" means any city or town, including a code city.
     (((4))) (5) "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))) (6) "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))) (7) "Department" means the department of community, trade, and economic development.
     (((7))) (8) "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))) (9) "Farm plan" means a plan prepared by a conservation district in cooperation with a landowner or operator for the purpose of conserving, monitoring, or enhancing renewable natural resources. Farm plans include, but are not limited to, site-specific provisions pertaining to:
     (a) Developing and prioritizing conservation objectives;
     (b) Taking an inventory of soil, water, vegetation, livestock, and wildlife;
     (c) Implementing conservation measures, including technical assistance provided by the district;
     (d) Developing and implementing livestock nutrient management measures;
     (e) Developing and implementing plans pursuant to business and financial objectives; and
     (f) Recording, or records of, decisions.
     (10) "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))) (11) "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))) (12) "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))) (13) "Mediation" means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
     (14) "Minerals" include gravel, sand, and valuable metallic substances.
     (((12))) (15) "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))) (16) "Public services" include fire protection and suppression, law enforcement, public health, education, recreation, environmental protection, and other governmental services.
     (((14))) (17) "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))) (18) "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))) (19) "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))) (20) "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))) (21) "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))) (22) "Urban growth areas" means those areas designated by a county pursuant to RCW 36.70A.110.
     (((20))) (23) "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))) (24) "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, 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. 3   RCW 36.70A.060 and 2005 c 423 s 3 are each amended to read as follows:
     (1)(a) Except as provided in RCW 36.70A.1701, each county that is required or chooses to plan under RCW 36.70A.040, and each city within such county, shall adopt development regulations on or before September 1, 1991, to assure the conservation of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170. Regulations adopted under this subsection may not prohibit uses legally existing on any parcel prior to their adoption and shall remain in effect until the county or city adopts development regulations pursuant to RCW 36.70A.040. Such regulations shall assure that the use of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the continued use, in the accustomed manner and in accordance with best management practices, of these designated lands for the production of food, agricultural products, or timber, or for the extraction of minerals.
     (b) Counties and cities shall require that all plats, short plats, development permits, and building permits issued for development activities on, or within five hundred feet of, lands designated as agricultural lands, forest lands, or mineral resource lands, contain a notice that the subject property is within or near designated agricultural lands, forest lands, or mineral resource lands on which a variety of commercial activities may occur that are not compatible with residential development for certain periods of limited duration. The notice for mineral resource lands shall also inform that an application might be made for mining-related activities, including mining, extraction, washing, crushing, stockpiling, blasting, transporting, and recycling of minerals.
     (2) Except as provided in section 5 of this act, each county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170. For counties and cities that are required or choose to plan under RCW 36.70A.040, such development regulations shall be adopted on or before September 1, 1991. For the remainder of the counties and cities, such development regulations shall be adopted on or before March 1, 1992.
     (3) Such counties and cities shall review these designations and development regulations when adopting their comprehensive plans under RCW 36.70A.040 and implementing development regulations under RCW 36.70A.120 and may alter such designations and development regulations to insure consistency.
     (4) Forest land and agricultural land located within urban growth areas shall not be designated by a county or city as forest land or agricultural land of long-term commercial significance under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights.

Sec. 4   RCW 36.70A.280 and 2003 c 332 s 2 are each amended to read as follows:
     (1) A growth management hearings board shall hear and determine only those petitions alleging either:
     (a) That a state agency, county, or city planning under this chapter is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption of shoreline master programs or amendments thereto, or chapter 43.21C RCW as it relates to plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW. A board, however, may only hear and determine a petition related to agricultural activities occurring on agricultural lands under this subsection if the parties have participated in mediation services provided by the department under RCW 36.70A.190; or
     (b) That the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted.
     (2) Petitions alleging noncompliance with development regulations that protect critical areas as they relate to agricultural activities occurring on agricultural land are subject to section 5 of this act.
     (3) A petition may be filed only by: (a) The state, or a county or city that plans under this chapter; (b) a person who has participated orally or in writing before the county or city regarding the matter on which a review is being requested; (c) a person who is certified by the governor within sixty days of filing the request with the board; or (d) a person qualified pursuant to RCW 34.05.530.
     (((3))) (4) For purposes of this section "person" means any individual, partnership, corporation, association, state agency, governmental subdivision or unit thereof, or public or private organization or entity of any character.
     (((4))) (5) To establish participation standing under subsection (((2))) (3)(b) of this section, a person must show that his or her participation before the county or city was reasonably related to the person's issue as presented to the board.
     (((5))) (6) When considering a possible adjustment to a growth management planning population projection prepared by the office of financial management, a board shall consider the implications of any such adjustment to the population forecast for the entire state.
     The rationale for any adjustment that is adopted by a board must be documented and filed with the office of financial management within ten working days after adoption.
     If adjusted by a board, a county growth management planning population projection shall only be used for the planning purposes set forth in this chapter and shall be known as a "board adjusted population projection". None of these changes shall affect the official state and county population forecasts prepared by the office of financial management, which shall continue to be used for state budget and planning purposes.

NEW SECTION.  Sec. 5   A new section is added to chapter 36.70A RCW to read as follows:
     (1) Development regulations adopted under RCW 36.70A.060(2) on or before January 1, 2007, may not prohibit or otherwise limit agricultural activities occurring on agricultural lands if:
     (a) The agricultural activities occurring on agricultural land are consistent with a farm plan for the parcels on which the agricultural activities are occurring;
     (b) The applicable farm plan has been filed with and approved by the county in which the agricultural land is located;
     (c) The applicable farm plan provides a level of protection to critical areas that is at least equal to the level of protection the jurisdiction otherwise requires through its development regulations under RCW 36.70A.060(2) for critical areas located on agricultural lands; and
     (d) The landowner or operator waives the exemption from public disclosure provided under RCW 42.56.270(17) for the applicable farm plan.
     (2) With regard to a petition under RCW 36.70A.280 alleging noncompliance with development regulations that protect critical areas as they relate to agricultural activities occurring on agricultural lands:
     (a) A board may not hear or determine such a petition if the agricultural activities occurring on agricultural lands are in compliance with the requirements in subsection (1) of this section;
     (b) A board may only hear and determine such a petition:
     (i) If the agricultural activities occurring on agricultural lands are not in compliance with the requirements in subsection (1) of this section; and
     (ii) The parties have participated in mediation services provided by the department under RCW 36.70A.190.
     (3) As used in this section, "agricultural land" means those specific land areas on which agricultural activities are conducted.

Sec. 6   RCW 36.70A.190 and 1991 sp.s. c 32 s 3 are each amended to read as follows:
     (1) The department shall establish a program of technical and financial assistance and incentives to counties and cities to encourage and facilitate the adoption and implementation of comprehensive plans and development regulations throughout the state.
     (2) The department shall develop a priority list and establish funding levels for planning and technical assistance grants both for counties and cities that plan under RCW 36.70A.040. Priority for assistance shall be based on a county's or city's population growth rates, commercial and industrial development rates, the existence and quality of a comprehensive plan and development regulations, and other relevant factors.
     (3) The department shall develop and administer a grant program to provide direct financial assistance to counties and cities for the preparation of comprehensive plans under this chapter. The department may establish provisions for county and city matching funds to conduct activities under this subsection. Grants may be expended for any purpose directly related to the preparation of a county or city comprehensive plan as the county or city and the department may agree, including, without limitation, the conducting of surveys, inventories and other data gathering and management activities, the retention of planning consultants, contracts with regional councils for planning and related services, and other related purposes.
     (4) The department shall establish a program of technical assistance:
     (a) Utilizing department staff, the staff of other state agencies, and the technical resources of counties and cities to help in the development of comprehensive plans required under this chapter. The technical assistance may include, but not be limited to, model land use ordinances, regional education and training programs, and information for local and regional inventories; and
     (b) Adopting by rule procedural criteria to assist counties and cities in adopting comprehensive plans and development regulations that meet the goals and requirements of this chapter. These criteria shall reflect regional and local variations and the diversity that exists among different counties and cities that plan under this chapter.
     (5) The department shall provide mediation services to resolve disputes between: (a) Counties and cities regarding, among other things, coordination of regional issues and designation of urban growth areas; (b) counties, cities, and other persons regarding the application of development regulations that protect critical areas to agricultural activities occurring on agricultural lands; and (c) counties, cities, and other persons regarding alleged noncompliance with requirements of the statutes named in RCW 36.70A.280(1)(a) that relate to agricultural activities occurring on agricultural lands.
     (6) The department shall provide planning grants to enhance citizen participation under RCW 36.70A.140.

NEW SECTION.  Sec. 7   (1)(a) A joint legislative task force on development regulations and agricultural lands is established, with members as provided in this subsection.
     (i) The president of the senate shall appoint two members from each of the two largest caucuses of the senate.
     (ii) The speaker of the house of representatives shall appoint two members from each of the two largest caucuses of the house of representatives.
     (b) The office of financial management and the department of community, trade, and economic development shall each maintain a liaison representative who shall be a nonvoting member. Each agency shall cooperate with the task force and provide such information as the cochairs may reasonably request.
     (c) The task force shall choose its cochairs from among its members.
     (2) Legislative members of the task force shall be reimbursed for travel expenses in accordance with RCW 44.04.120.
     (3) The expenses of the task force shall be paid jointly by the senate and the house of representatives. Task force expenditures are subject to approval by the senate facilities and operations committee and the house of representatives executive rules committee, or their successor committees.
     (4) Staff support shall be provided by the senate committee services and the house of representatives office of program research.
     (5) The task force may contract with additional persons who have specific technical expertise if such expertise is necessary to carry out the work of the task force. Such a contract may be entered into only if an appropriation is specifically provided for this purpose.
     (6)(a) Beginning July 1, 2007, the task force shall work with the Ruckelshaus center to design and carry out a process to identify issues that cause conflicts between agricultural activities occurring on agricultural land and development regulations that protect critical areas. Such issues may include, but are not limited to, an assessment of:
     (i) The degree to which local critical areas ordinances limit or modify currently existing agricultural activities on agricultural land;
     (ii) Issues that have driven the legal challenges that have come before the growth management hearings boards and the courts;
     (iii) Performance-based methods for reaching environmental goals of critical areas ordinances while allowing agricultural activities on agricultural land to continue;
     (iv) Technical assistance available to local governments in resolving land use disputes involving agricultural activities on agricultural land; and
     (v) Recommendations for statutory changes to help resolve disputes.
     (b) The task force and the center shall involve stakeholders from diverse perspectives in the process, including but not limited to representatives of counties, cities, the agriculture industry, the environmental community, Native American tribes, and state agencies.
     (c) By January 1, 2008, the task force shall submit a progress report to the governor and the appropriate committees of the legislature identifying issues, initial recommendations, and a plan for the work remaining.
     (d) By October 1, 2008, the task force and the center shall report to the governor and the appropriate committees of the legislature its findings and recommendations for resolving or reducing these conflicts, including statutory changes for consideration during the 2009 legislative session.
     (7) This section expires June 30, 2009.