BILL REQ. #:  H-3761.1 

Prefiled 12/07/07. Read first time 01/14/08.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to the state's management of the geoduck fishery; amending RCW 77.70.220, 77.60.070, 79.02.010, 79.140.020, 79.135.030, 79.135.220, 79.135.230, 82.27.010, 82.27.030, and 82.27.070; adding a new section to chapter 77.12 RCW; adding a new section to chapter 82.27 RCW; creating a new section; repealing RCW 79.135.210; and providing an effective date.

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

NEW SECTION.  Sec. 1   (1) The legislature finds that responsibility for the state's management of geoducks has historically been shared by the department of fish and wildlife and the department of natural resources. Unlike other species of fish and wildlife, the department of natural resources has shared in the state's management responsibilities because geoducks are embedded in lands that the legislature has asked the department of natural resources to administer.      
     (2) The legislature further finds that geoducks, as the world's largest clam, play an invaluable role in the state's aquatic ecosystems by filtering the water column. As such, geoducks can play an important role in the recovery and maintenance of environmental health in distressed waters, such as Puget Sound.
     (3) The legislature further finds that although adult geoduck do not move from the sediment in which they locate themselves, larval geoduck are in fact free-swimming individuals, often ranging far from the location of their parents. In addition, adult geoduck spawn in a broadcast manner that ensures a wide distribution of their genetic lineage across wide swatches of their aquatic environment.
     (4) The legislature further finds that the time has come for a new model of wildstock geoduck management in the state. This new model would no longer consider geoducks as an extension of the property in which they happened to be embedded, but instead manage the animal like all other fish and wildlife species. This new model would not only prove superior for maintaining sustainable and harvestable levels of geoducks, but would also prove that superior management can be attained by removing the direct link between the economic value of the resource and the entity charged with the responsibility of managing the resource.

NEW SECTION.  Sec. 2   A new section is added to chapter 77.12 RCW to read as follows:
     (1) On January 1, 2009, the department assumes complete responsibility for the management of the state's subtidal wildstock geoduck fishery. The department is responsible for all management decisions, including specifying the time, place, quantity, and manner that geoducks may be harvested, communicating with any comanagers of the fishery, and enforcing fishery rules. Wildstock subtidal geoducks embedded in state-owned aquatic lands must be considered and managed as though they were a free-swimming species and may no longer be considered or managed as an extension of the real property in which they are embedded.
     (2) The management program established by the department must be deemed by the department to be the most effective and responsible for managing the fishery at a sustainable, harvestable level.
     (3) All participants in the subtidal wildstock geoduck fishery must be in possession of a valid geoduck fishery license under RCW 77.70.220.

Sec. 3   RCW 77.70.220 and 2000 c 107 s 71 are each amended to read as follows:
     (1) A person shall not harvest geoduck clams commercially without a geoduck fishery license. This section does not apply to the harvest of private sector cultured aquatic products as defined in RCW 15.85.020.
     (2) ((Only a person who has entered into a geoduck harvesting agreement with the department of natural resources under *RCW 79.96.080 may hold a geoduck fishery license.
     (3))) A geoduck fishery license authorizes no taking of geoducks outside the boundaries of ((the public lands designated in the underlying harvesting agreement)), or beyond the harvest ceiling set ((in the underlying harvesting agreement)) by, the department.
     (((4))) (3) A geoduck fishery license expires ((when the underlying geoduck harvesting agreement terminates)) on a date set by the department.
     (((5))) (4) The director shall determine the number of geoduck fishery licenses that may be issued ((for each geoduck harvesting agreement)), the number of units of gear whose use the license authorizes, and the type of gear that may be used, subject to RCW 77.60.070. In making those determinations, the director shall seek to conserve the geoduck resource and prevent damage to its habitat.
     (((6))) (5) The fee for a geoduck fishery license must be set as provided in RCW 77.65.220.
     (6) The holder of a geoduck fishery license and the holder's agents and representatives shall comply with all applicable commercial diving safety regulations adopted by the federal occupational safety and health administration established under the federal occupational safety and health act of 1970 as such law exists on May 8, 1979, 84 Stat. 1590 et seq.; 29 U.S.C. Sec. 651 et seq. A violation of those regulations is a violation of this subsection. For the purposes of this section, persons who dive for geoducks are "employees" as defined by the federal occupational safety and health act. A violation of this subsection is grounds for suspension or revocation of a geoduck fishery license following a hearing under the procedures of chapter 34.05 RCW. The director shall not suspend or revoke a geoduck fishery license if the violation has been corrected within ten days of the date the license holder receives written notice of the violation. If there is a substantial probability that a violation of the commercial diving standards could result in death or serious physical harm to a person engaged in harvesting geoduck clams, the director shall suspend the license immediately until the violation has been corrected. If the license holder is not the operator of the harvest vessel and has contracted with another person for the harvesting of geoducks, the director shall not suspend or revoke the license if the license holder terminates its business relationship with that person until compliance with this subsection is secured.

Sec. 4   RCW 77.60.070 and 2006 c 144 s 1 are each amended to read as follows:
     (1) The director may not authorize a person to take geoduck clams for commercial purposes ((outside the harvest area designated in a current department of natural resources geoduck harvesting agreement issued under RCW 79.135.210. The director may not authorize commercial harvest of geoduck clams)) from bottoms that are shallower than eighteen feet below mean lower low water (0.0. ft.). Vessels conducting harvest operations must remain seaward of a line two hundred yards seaward from and parallel to the line of ordinary high tide. This section does not apply to the harvest of private sector cultured aquatic products as defined in RCW 15.85.020.
     (2) Commercial geoduck harvesting shall be done with a hand-held, manually operated water jet or suction device guided and controlled from under water by a diver. Periodically, the director shall determine the effect of each type or unit of gear upon the geoduck population or the substrate they inhabit. The director may require modification of the gear or stop its use if it is being operated in a wasteful or destructive manner or if its operation may cause permanent damage to the bottom or adjacent shellfish populations.

Sec. 5   RCW 79.02.010 and 2004 c 199 s 201 are each amended to read as follows:
     The definitions in this section apply throughout this title unless the context clearly requires otherwise.
     (1) "Aquatic lands" means all state-owned tidelands, shorelands, harbor areas, and the beds of navigable waters, as that term is defined in ((chapter 79.90)) RCW 79.105.060, that are administered by the department.
     (2) "Board" means the board of natural resources.
     (3) "Commissioner" means the commissioner of public lands.
     (4) "Community and technical college forest reserve lands" means lands managed under RCW 79.02.420.
     (5) "Department" means the department of natural resources.
     (6) "Improvements" means anything considered a fixture in law placed upon or attached to lands administered by the department that has changed the value of the lands or any changes in the previous condition of the fixtures that changes the value of the lands.
     (7) "Land bank lands" means lands acquired under RCW 79.19.020.
     (8) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of a federal, state, or local governmental unit, however designated.
     (9) "Public lands" means lands of the state of Washington administered by the department including but not limited to state lands, state forest lands, and aquatic lands.
     (10) "State forest lands" means lands acquired under RCW 79.22.010, 79.22.040, and 79.22.020.
     (11) "State lands" includes:
     (a) School lands, that is, lands held in trust for the support of the common schools;
     (b) University lands, that is, lands held in trust for university purposes;
     (c) Agricultural college lands, that is, lands held in trust for the use and support of agricultural colleges;
     (d) Scientific school lands, that is, lands held in trust for the establishment and maintenance of a scientific school;
     (e) Normal school lands, that is, lands held in trust for state normal schools;
     (f) Capitol building lands, that is, lands held in trust for the purpose of erecting public buildings at the state capital for legislative, executive, and judicial purposes;
     (g) Institutional lands, that is, lands held in trust for state charitable, educational, penal, and reformatory institutions; and
     (h) Land bank, escheat, donations, and all other lands, except aquatic lands, administered by the department that are not devoted to or reserved for a particular use by law.
     (12) "Valuable materials" means any product or material on the lands, such as forest products, forage or agricultural crops, stone, gravel, sand, peat, and all other materials of value except for geoducks and other shellfish embedded in aquatic lands, and mineral, coal, petroleum, and gas as provided for under chapter 79.14 RCW.

Sec. 6   RCW 79.140.020 and 2005 c 155 s 802 are each amended to read as follows:
     (1) The department shall print a list of valuable materials contained within or upon state-owned aquatic lands, giving appraised value, character of the land, and such other information as may be of interest to prospective buyers. The lists must be issued at least four weeks prior to the date of any sale. The department shall retain for free distribution in its office in Olympia and the regional offices sufficient copies of the lists, to be kept in a conspicuous place or receptacle on the counter of the general and regional office of the department, and, when requested, shall mail copies of the list as issued to any applicant.
     (2) No item not contained within the definition of "valuable materials" provided in RCW 79.02.010 may be listed or offered for sale.

Sec. 7   RCW 79.135.030 and 2005 c 155 s 714 are each amended to read as follows:
     (1) If a person wrongfully takes shellfish or causes shellfish to be wrongfully taken from the public lands and the wrongful taking is intentional and knowing, the person is liable for damages of treble the fair market retail value of the amount of shellfish wrongfully taken. If a person wrongfully takes shellfish from the public lands under other circumstances, the person is liable for damages of double the fair market value of the amount of shellfish wrongfully taken.
     (2) For purposes of this section, a person "wrongfully takes" shellfish from public lands if the person takes shellfish: (a) Above the limits of any applicable laws that govern the harvest of shellfish from public lands; (b) without reporting the harvest to the department of fish and wildlife ((or the department)) where the reporting is required by law or contract; (c) outside the area or above the limits that ((an agreement or contract from)) the department of fish and wildlife allows the harvest of shellfish from public lands; or (d) without a lease or purchase of the shellfish where the lease or purchase is required by law prior to harvest of the shellfish.
     (3) The remedies in this section are for civil damages and shall be proved by a preponderance of the evidence. The department may file a civil action in Thurston county superior court or the county where the shellfish were taken against any person liable under this section. Damages recovered under this section shall be applied in the same way as the geoduck excise tax revenue is received under ((geoduck harvesting agreements authorized by RCW 79.135.210)) section 11 of this act.
     (4) For purposes of the remedies created by this section, the amount of shellfish wrongfully taken by a person may be established either:
     (a) By surveying the aquatic lands to reasonably establish the amount of shellfish taken from the immediate area where a person is shown to have been wrongfully taking shellfish;
     (b) By weighing the shellfish on board any vessel or in possession of a person shown to be wrongfully taking shellfish; or
     (c) By any other evidence that reasonably establishes the amount of shellfish wrongfully taken.
     The amount of shellfish established by (a) or (b) of this subsection shall be presumed to be the amount wrongfully taken unless the defendant shows by a preponderance of evidence that the shellfish were lawfully taken or that the defendant did not take the shellfish presumed to have been wrongfully taken. Whenever there is reason to believe that shellfish in the possession of any person were wrongfully taken, the department or the department of fish and wildlife may require the person to proceed to a designated off-load point and to weigh all shellfish in possession of the person or on board the person's vessel.
     (5) This civil remedy is supplemental to the state's power to prosecute any person for theft of shellfish, for other crimes where shellfish are involved, or for violation of rules of the department of fish and wildlife.

Sec. 8   RCW 79.135.220 and 2005 c 155 s 709 are each amended to read as follows:
     ((The department shall designate the areas of state-owned)) All areas of aquatic lands ((that are)) must be made available for geoduck harvesting by licensed geoduck harvesters in accordance with ((chapter 79.90)) RCW 77.70.220 when the harvesters are operating in accordance with the time, place, and manner restrictions established by the department of fish and wildlife.

Sec. 9   RCW 79.135.230 and 2005 c 155 s 718 are each amended to read as follows:
     The department may enter into agreements with the department of fish and wildlife for the development ((of an intensive management plan for geoducks including the development)) and operation of a geoduck hatchery.

Sec. 10   RCW 82.27.010 and 1995 c 372 s 4 are each amended to read as follows:
     As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.
     (1) "Enhanced food fish" includes all species of food fish, except all species of tuna, mackerel, and jack; shellfish; and anadromous game fish, including byproducts and parts thereof, originating within the territorial and adjacent waters of Washington and salmon originating from within the territorial and adjacent waters of Oregon, Washington, and British Columbia, and all troll-caught Chinook salmon originating from within the territorial and adjacent waters of southeast Alaska. As used in this subsection, "adjacent" waters of Oregon, Washington, and Alaska are those comprising the United States fish conservation zone; "adjacent" waters of British Columbia are those comprising the Canadian two hundred mile exclusive economic zone; and "southeast Alaska" means that portion of Alaska south and east of Cape Suckling to the Canadian border. For purposes of this chapter, point of origination is established by a document which identifies the product and state or province in which it originates, including, but not limited to fish tickets, bills of lading, invoices, or other documentation required to be kept by governmental agencies.
     (2) "Commercial" means related to or connected with buying, selling, bartering, or processing.
     (3) "Possession" means the control of enhanced food fish or geoduck by the owner and includes both actual and constructive possession. Constructive possession occurs when the person has legal ownership but not actual possession of the enhanced food fish or geoduck.
     (4) "Anadromous game fish" means steelhead trout and anadromous cutthroat trout and Dolly Varden char and includes byproducts and also parts of anadromous game fish, whether fresh, frozen, canned, or otherwise.
     (5) "Landed" means the act of physically placing enhanced food fish or geoduck (a) on a tender in the territorial waters of Washington; or (b) on any land within or without the state of Washington including wharves, piers, or any such extensions therefrom.
     (6) "Geoduck" means all subtidal, wildstock geoduck clams harvested by an individual in possession of a geoduck fishery license issued by the department of fish and wildlife under RCW 77.70.220.

NEW SECTION.  Sec. 11   A new section is added to chapter 82.27 RCW to read as follows:
     (1) In addition to all other taxes, licenses, or fees provided by law there is established an excise tax on the commercial possession of geoduck as provided in this chapter. The tax is levied upon and must be collected from the owner of the geoduck whose possession constitutes the taxable event. The taxable event is the first possession in Washington by an owner after the geoduck has been landed. Processing and handling of geoduck by a person who is not the owner is not a taxable event to the processor or handler.
     (2) The measure of the tax is the value of the geoduck at the point of landing.
     (3) The tax shall be equal to the measure of the tax multiplied by a rate set by the department. The department must set a rate that equals the average approximate value, either per pound or per individual geoduck, received by the department of natural resources for geoduck harvests in the five years prior to the effective date of this section. The department shall readjust the rate as necessary to maintain the present value of revenues at an approximately equivalent level.
     (4) All revenue received by the department under this section, except for the minimum revenue necessary to cover the department's expense for administering this section, must be provided to the department of natural resources and distributed under RCW 79.64.040 as though it was revenue derived from a transaction involving state-owned aquatic lands.

Sec. 12   RCW 82.27.030 and 1995 2nd sp.s. c 7 s 1 are each amended to read as follows:
     The tax imposed by RCW 82.27.020 shall not apply to: (1) Enhanced food fish or geoduck originating outside the state which enters the state as (a) frozen enhanced food fish or (b) enhanced food fish packaged for retail sales; (2) the growing, processing, or dealing with food fish or shellfish which are raised from eggs, fry, or larvae and which are under the physical control of the grower at all times until being sold or harvested; and (3) food fish, shellfish, anadromous game fish, and byproducts or parts of food fish shipped from outside the state which enter the state, except as provided in RCW 82.27.010, provided the taxpayer must have documentation showing shipping origination of fish exempt under this subsection to qualify for exemption. Such documentation includes, but is not limited to fish tickets, bills of lading, invoices, or other documentation required to be kept by governmental agencies.

Sec. 13   RCW 82.27.070 and 2005 c 110 s 4 are each amended to read as follows:
     Except as provided in section 11 of this act, all taxes collected by the department of revenue under this chapter shall be deposited in the state general fund except for the excise tax on anadromous game fish, which shall be deposited in the state wildlife ((fund)) account, and, during the period January 1, 2000, to December 31, 2010, twenty-five forty-sixths of the revenues derived from the excise tax on sea urchins collected under RCW 82.27.020 shall be deposited into the sea urchin dive fishery account created in RCW 77.70.150, and twenty-five forty-sixths of the revenues derived from the excise tax on sea cucumbers collected under RCW 82.27.020 shall be deposited into the sea cucumber dive fishery account created in RCW 77.70.190.

NEW SECTION.  Sec. 14   RCW 79.135.210 (Geoduck harvesting--Agreements, regulation) and 2005 c 155 s 708, 2005 c 113 s 3, 2003 c 39 s 43, 1990 c 163 s 4, & 1982 1st ex.s. c 21 s 141 are each repealed.

NEW SECTION.  Sec. 15   This act takes effect January 1, 2009.