BILL REQ. #: H-0452.1
State of Washington | 63rd Legislature | 2013 Regular Session |
Read first time 01/21/13. Referred to Committee on Government Accountability & Oversight.
AN ACT Relating to establishing consistent standards for agency decision making; amending RCW 70.94.181, 76.09.060, 77.55.021, 78.44.081, 86.16.025, 70.95.205, 15.54.820, 43.21C.033, 77.115.040, 16.65.030, 70.119A.110, 90.03.350, 90.03.370, 90.58.140, and 70.118B.030; adding a new section to chapter 70.94 RCW; adding a new section to chapter 90.48 RCW; adding a new section to chapter 90.76 RCW; adding a new section to chapter 18.104 RCW; adding a new section to chapter 69.30 RCW; adding a new section to chapter 90.64 RCW; adding a new section to chapter 15.58 RCW; adding a new section to chapter 17.21 RCW; adding a new section to chapter 70.95J RCW; and adding a new section to chapter 90.66 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 70.94 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 2 RCW 70.94.181 and 1991 c 199 s 306 are each amended to
read as follows:
(1) Any person who owns or is in control of any plant, building,
structure, establishment, process or equipment may apply to the
department ((of ecology)) or appropriate local authority board for a
variance from rules or regulations governing the quality, nature,
duration or extent of discharges of air contaminants. The application
shall be accompanied by such information and data as the department
((of ecology)) or board may require. The department ((of ecology)) or
board may grant such variance, provided that variances to state rules
shall require the department's approval prior to being issued by a
local authority board. The total time period for a variance and
renewal of such variance shall not exceed one year. Variances may be
issued by either the department or a local board but only after public
hearing or due notice, if the department or board finds that:
(a) The emissions occurring or proposed to occur do not endanger
public health or safety or the environment; and
(b) Compliance with the rules or regulations from which variance is
sought would produce serious hardship without equal or greater benefits
to the public.
(2) No variance shall be granted pursuant to this section until the
department ((of ecology)) or board has considered the relative
interests of the applicant, other owners of property likely to be
affected by the discharges, and the general public.
(3) Any variance or renewal thereof shall be granted within the
requirements of subsection (1) of this section and under conditions
consistent with the reasons therefor, and within the following
limitations:
(a) If the variance is granted on the ground that there is no
practicable means known or available for the adequate prevention,
abatement, or control of the pollution involved, it shall be only until
the necessary means for prevention, abatement, or control become known
and available, and subject to the taking of any substitute or alternate
measures that the department ((of ecology)) or board may prescribe.
(b) If the variance is granted on the ground that compliance with
the particular requirement or requirements from which variance is
sought will require the taking of measures which, because of their
extent or cost, must be spread over a considerable period of time, it
shall be for a period not to exceed such reasonable time as, in the
view of the department ((of ecology)) or board is requisite for the
taking of the necessary measures. A variance granted on the ground
specified herein shall contain a timetable for the taking of action in
an expeditious manner and shall be conditioned on adherence to such
timetable.
(c) If the variance is granted on the ground that it is justified
to relieve or prevent hardship of a kind other than that provided for
in (a) and (b) of this subsection, it shall be for not more than one
year.
(4) Any variance granted pursuant to this section may be renewed on
terms and conditions and for periods which would be appropriate on
initial granting of a variance. If complaint is made to the department
((of ecology)) or board on account of the variance, no renewal thereof
shall be granted unless following a public hearing on the complaint on
due notice the department or board finds that renewal is justified. No
renewal shall be granted except on application therefor. Any such
application shall be made at least sixty days prior to the expiration
of the variance. Immediately upon receipt of an application for
renewal, the department ((of ecology)) or board shall give public
notice of such application in accordance with rules of the department
((of ecology)) or board.
(5) A variance or renewal shall not be a right of the applicant or
holder thereof but shall be granted at the discretion of the department
((of ecology)) or board. However, any applicant adversely affected by
the denial or the terms and conditions of the granting of an
application for a variance or renewal of a variance by the department
((of ecology)) or board may obtain judicial review thereof under the
provisions of chapter 34.05 RCW as now or hereafter amended.
(6) Nothing in this section and no variance or renewal granted
pursuant hereto shall be construed to prevent or limit the application
of the emergency provisions and procedures of RCW 70.94.710 through
70.94.730 to any person or his or her property.
(7) An application for a variance, or for the renewal thereof,
submitted to the department ((of ecology)) or board pursuant to this
section shall be approved or disapproved by the department or board
within sixty-five days of receipt unless the applicant and the
department ((of ecology)) or board agree to a continuance.
(8) Variances approved under this section shall not be included in
orders or permits provided for in RCW 70.94.161 or 70.94.152 until such
time as the variance has been accepted by the United States
environmental protection agency as part of an approved state
implementation plan.
(9)(a) All decisions on variances under this section must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 3 RCW 76.09.060 and 2012 1st sp.s. c 1 s 206 are each
amended to read as follows:
(1) The department shall prescribe the form and contents of the
notification and application. The forest practices rules shall specify
by whom and under what conditions the notification and application
shall be signed or otherwise certified as acceptable. Activities
conducted by the department or a contractor under the direction of the
department under the provisions of RCW 76.04.660, shall be exempt from
the landowner signature requirement on any forest practices application
required to be filed. The application or notification shall be
delivered in person to the department, sent by first-class mail to the
department or electronically filed in a form defined by the department.
The form for electronic filing shall be readily convertible to a paper
copy, which shall be available to the public pursuant to chapter 42.56
RCW. The information required may include, but is not limited to:
(a) Name and address of the forest landowner, timber owner, and
operator;
(b) Description of the proposed forest practice or practices to be
conducted;
(c) Legal description and tax parcel identification numbers of the
land on which the forest practices are to be conducted;
(d) Planimetric and topographic maps showing location and size of
all lakes and streams and other public waters in and immediately
adjacent to the operating area and showing all existing and proposed
roads and major tractor roads;
(e) Description of the silvicultural, harvesting, or other forest
practice methods to be used, including the type of equipment to be used
and materials to be applied;
(f) For an application or notification submitted on or after July
10, 2012, that includes a forest practices hydraulic project, plans and
specifications for the forest practices hydraulic project to ensure the
proper protection of fish life;
(g) Proposed plan for reforestation and for any revegetation
necessary to reduce erosion potential from roadsides and yarding roads,
as required by the forest practices rules;
(h) Soil, geological, and hydrological data with respect to forest
practices;
(i) The expected dates of commencement and completion of all forest
practices specified in the application;
(j) Provisions for continuing maintenance of roads and other
construction or other measures necessary to afford protection to public
resources;
(k) An affirmation that the statements contained in the
notification or application are true; and
(l) All necessary application or notification fees.
(2) Long range plans may be submitted to the department for review
and consultation.
(3) The application for a forest practice or the notification of a
forest practice is subject to the reforestation requirement of RCW
76.09.070.
(a) If the application states that any land will be or is intended
to be converted:
(i) The reforestation requirements of this chapter and of the
forest practices rules shall not apply if the land is in fact converted
unless applicable alternatives or limitations are provided in forest
practices rules issued under RCW 76.09.070;
(ii) Completion of such forest practice operations shall be deemed
conversion of the lands to another use for purposes of chapters 84.33
and 84.34 RCW unless the conversion is to a use permitted under a
current use tax agreement permitted under chapter 84.34 RCW;
(iii) The forest practices described in the application are subject
to applicable county, city, town, and regional governmental authority
permitted under RCW 76.09.240 as well as the forest practices rules.
(b) Except as provided elsewhere in this section, if the landowner
harvests without an approved application or notification or the
landowner does not state that any land covered by the application or
notification will be or is intended to be converted, and the department
or the county, city, town, or regional governmental entity becomes
aware of conversion activities to a use other than commercial timber
operations, as that term is defined in RCW 76.09.020, then the
department shall send to the department of ecology and the appropriate
county, city, town, and regional governmental entities the following
documents:
(i) A notice of a conversion to nonforestry use;
(ii) A copy of the applicable forest practices application or
notification, if any; and
(iii) Copies of any applicable outstanding final orders or
decisions issued by the department related to the forest practices
application or notification.
(c) Failure to comply with the reforestation requirements contained
in any final order or decision shall constitute a removal of
designation under the provisions of RCW 84.33.140, and a change of use
under the provisions of RCW 84.34.080, and, if applicable, shall
subject such lands to the payments and/or penalties resulting from such
removals or changes.
(d) Conversion to a use other than commercial forest product
operations within six years after approval of the forest practices
application or notification without the consent of the county, city, or
town shall constitute a violation of each of the county, municipal
city, town, and regional authorities to which the forest practice
operations would have been subject if the application had stated an
intent to convert.
(e) Land that is the subject of a notice of conversion to a
nonforestry use produced by the department and sent to the department
of ecology and a local government under this subsection is subject to
the development prohibition and conditions provided in RCW 76.09.460.
(f) Landowners who have not stated an intent to convert the land
covered by an application or notification and who decide to convert the
land to a nonforestry use within six years of receiving an approved
application or notification must do so in a manner consistent with RCW
76.09.470.
(g) The application or notification must include a statement
requiring an acknowledgment by the forest landowner of his or her
intent with respect to conversion and acknowledging that he or she is
familiar with the effects of this subsection.
(4) Whenever an approved application authorizes a forest practice
which, because of soil condition, proximity to a water course or other
unusual factor, has a potential for causing material damage to a public
resource, as determined by the department, the applicant shall, when
requested on the approved application, notify the department two days
before the commencement of actual operations.
(5) Before the operator commences any forest practice in a manner
or to an extent significantly different from that described in a
previously approved application or notification, there shall be
submitted to the department a new application or notification form in
the manner set forth in this section.
(6)(a) Except as provided in RCW 76.09.350(4), the notification to
or the approval given by the department to an application to conduct a
forest practice shall be effective for a term of three years from the
date of approval or notification.
(b) A notification or application may be renewed for an additional
three-year term by the filing and approval of a notification or
application, as applicable, prior to the expiration of the original
application or notification. A renewal application or notification is
subject to the forest practices rules in effect at the time the renewal
application or notification is filed. Nothing in this section
precludes the applicant from applying for a new application or
notification after the renewal period has lapsed.
(c) At the option of the applicant, an application or notification
may be submitted to cover a single forest practice or a number of
forest practices within reasonable geographic or political boundaries
as specified by the department. An application or notification that
covers more than one forest practice may have an effective term of more
than three years.
(d) The board shall adopt rules that establish standards and
procedures for approving an application or notification that has an
effective term of more than three years. Such rules shall include
extended time periods for application or notification approval or
disapproval. The department may require the applicant to provide
advance notice before commencing operations on an approved application
or notification.
(7) Notwithstanding any other provision of this section, no prior
application or notification shall be required for any emergency forest
practice necessitated by fire, flood, windstorm, earthquake, or other
emergency as defined by the board, but the operator shall submit an
application or notification, whichever is applicable, to the department
within forty-eight hours after commencement of such practice or as
required by local regulations.
(8) Forest practices applications or notifications are not required
for forest practices conducted to control exotic forest insect or
disease outbreaks, when conducted by or under the direction of the
department of agriculture in carrying out an order of the governor or
director of the department of agriculture to implement pest control
measures as authorized under chapter 17.24 RCW, and are not required
when conducted by or under the direction of the department in carrying
out emergency measures under a forest health emergency declaration by
the commissioner of public lands as provided in RCW 76.06.130.
(a) For the purposes of this subsection, exotic forest insect or
disease has the same meaning as defined in RCW 76.06.020.
(b) In order to minimize adverse impacts to public resources,
control measures must be based on integrated pest management, as
defined in RCW 17.15.010, and must follow forest practices rules
relating to road construction and maintenance, timber harvest, and
forest chemicals, to the extent possible without compromising control
objectives.
(c) Agencies conducting or directing control efforts must provide
advance notice to the appropriate regulatory staff of the department of
the operations that would be subject to exemption from forest practices
application or notification requirements.
(d) When the appropriate regulatory staff of the department are
notified under (c) of this subsection, they must consult with the
landowner, interested agencies, and affected tribes, and assist the
notifying agencies in the development of integrated pest management
plans that comply with forest practices rules as required under (b) of
this subsection.
(e) Nothing under this subsection relieves agencies conducting or
directing control efforts from requirements of the federal clean water
act as administered by the department of ecology under RCW 90.48.260.
(f) Forest lands where trees have been cut as part of an exotic
forest insect or disease control effort under this subsection are
subject to reforestation requirements under RCW 76.09.070.
(g) The exemption from obtaining approved forest practices
applications or notifications does not apply to forest practices
conducted after the governor, the director of the department of
agriculture, or the commissioner of public lands have declared that an
emergency no longer exists because control objectives have been met,
that there is no longer an imminent threat, or that there is no longer
a good likelihood of control.
(9)(a) All decisions on applications or notifications under this
section must be completed and the decision returned to the applicant
within ninety days of submitting the application. If the ninety-day
deadline is not satisfied, the applicant may file a motion in the
appropriate superior court requesting court approval of the
application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 4 A new section is added to chapter 90.48 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 5 RCW 77.55.021 and 2012 1st sp.s. c 1 s 102 are each
amended to read as follows:
(1) Except as provided in RCW 77.55.031, 77.55.051, 77.55.041, and
77.55.361, 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;
(d) Notice of compliance with any applicable requirements of the
state environmental policy act, unless otherwise provided for in this
chapter; and
(e) Payment of all applicable application fees charged by the
department under RCW 77.55.321.
(3) The department may establish direct billing accounts or other
funds transfer methods with permit applicants to satisfy the fee
payment requirements of RCW 77.55.321.
(4) The department may accept complete, written applications as
provided in this section for multiple site permits and may issue these
permits. For multiple site permits, each specific location must be
identified.
(5) With the exception of emergency permits as provided in
subsection (((12))) (13) of this section, applications for permits must
be submitted to the department's headquarters office in Olympia.
Requests for emergency permits as provided in subsection (((12))) (13)
of this section may be made to the permitting biologist assigned to the
location in which the emergency occurs, to the department's regional
office in which the emergency occurs, or to the department's
headquarters office.
(6) Except as provided for emergency permits in subsection (((12)))
(13) of this section, the department may not proceed with permit review
until all fees are paid in full as required in RCW 77.55.321.
(7)(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.
(b) Except as provided in this subsection and subsections (((12)
through (14) and (16))) (13), (15), and (16) 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).
(c) Immediately upon determination that the forty-five day period
is suspended under (b) of this subsection, the department shall notify
the applicant in writing of the reasons for the delay.
(d) 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.
(8) 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.
(a) Except as provided in (b) of this subsection, issuance, denial,
conditioning, or modification of a permit shall be appealable to the
board within thirty days from the date of receipt of the decision as
provided in RCW 43.21B.230.
(b) Issuance, denial, conditioning, or modification of a permit may
be informally appealed to the department within thirty days from the
date of receipt of the decision. Requests for informal appeals must be
filed in the form and manner prescribed by the department by rule. A
permit decision that has been informally appealed to the department is
appealable to the board within thirty days from the date of receipt of
the department's decision on the informal appeal.
(9)(a) Notwithstanding the forty-five day decision timeline
required in this section, all decisions on applications under this
section must be completed and the decision returned to the applicant no
longer than ninety days of submitting the application. If the ninety-day deadline is not satisfied, the applicant may file a motion in the
appropriate superior court requesting court approval of the
application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
(10)(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 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.
(((10))) (11) The department may, after consultation with the
permittee, modify a permit due to changed conditions. A modification
under this subsection is not subject to the fees provided under RCW
77.55.321. The modification is appealable as provided in subsection
(8) of this section. For a hydraulic project that diverts water for
agricultural irrigation or stock watering purposes, 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.
(((11))) (12) 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 and payment of
applicable fees under RCW 77.55.321. A decision by the department is
appealable as provided in subsection (8) of this section. For a
hydraulic project that diverts water for agricultural irrigation or
stock watering purposes, 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.
(((12))) (13)(a) The department, the county legislative authority,
or the governor may declare and continue an emergency. If the county
legislative authority declares an emergency under this subsection, it
shall immediately notify the department. A declared state of emergency
by the governor under RCW 43.06.010 shall constitute a declaration
under this subsection.
(b) The department, through its authorized representatives, shall
issue immediately, upon request, verbal 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 verbal permit must be reduced to writing within thirty days
and complied with as provided for in this chapter.
(c) 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.
(d) The department may not charge a person requesting an emergency
permit any of the fees authorized by RCW 77.55.321 until after the
emergency permit is issued and reduced to writing.
(((13))) (14) 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.
(((14))) (15) 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.
(((15))) (16)(a) For any property, except for property located on
a marine shoreline, that has experienced at least two consecutive years
of flooding or erosion that has damaged or has threatened to damage a
major structure, water supply system, septic system, or access to any
road or highway, the county legislative authority may determine that a
chronic danger exists. The county legislative authority shall notify
the department, in writing, when it determines that a chronic danger
exists. In cases of chronic danger, the department shall issue a
permit, upon request, for work necessary to abate the chronic danger by
removing any obstructions, repairing existing structures, restoring
banks, restoring road or highway access, protecting fish resources, or
protecting property. Permit requests must be made and processed in
accordance with subsections (2) and (7) of this section.
(b) Any projects proposed to address a chronic danger identified
under (a) of this subsection that satisfies the project description
identified in RCW 77.55.181(1)(a)(ii) are not subject to the provisions
of the state environmental policy act, chapter 43.21C RCW. However,
the project is subject to the review process established in RCW
77.55.181(3) as if it were a fish habitat improvement project.
(((16))) (17) 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.
NEW SECTION. Sec. 6 A new section is added to chapter 90.76 RCW
to read as follows:
(1) All decisions on license applications under this chapter must
be completed and the decision returned to the applicant within ninety
days of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the license application is denied either within or after the
ninety-day decision period, the applicant may file a motion in the
appropriate superior court requesting the court to overturn the
decision. This subsection applies notwithstanding, and as an
alternative to, any other provision of law establishing appeal
procedures. Applicants choosing to utilize this appeal authority are
deemed to have satisfied all administrative remedies.
Sec. 7 RCW 78.44.081 and 1997 c 192 s 1 are each amended to read
as follows:
(1) After July 1, 1993, no miner or permit holder may engage in
surface mining without having first obtained a reclamation permit from
the department. Operating permits issued by the department between
January 1, 1971, and June 30, 1993, shall be considered reclamation
permits. A separate permit shall be required for each noncontiguous
surface mine. The reclamation permit shall consist of the permit forms
and any exhibits attached thereto. The permit holder shall comply with
the provisions of the reclamation permit unless waived and explained in
writing by the department.
(2) Prior to receiving a reclamation permit, an applicant must
submit an application on forms provided by the department that shall
contain the following information and shall be considered part of the
reclamation permit:
(((1))) (a) Name and address of the legal landowner, or purchaser
of the land under a real estate contract;
(((2))) (b) The name of the applicant and, if the applicants are
corporations or other business entities, the names and addresses of
their principal officers and resident agent for service of process;
(((3))) (c) A reasonably accurate description of the minerals to be
surface mined;
(((4))) (d) Type of surface mining to be performed;
(((5))) (e) Estimated starting date, date of completion, and date
of completed reclamation of surface mining;
(((6))) (f) Size and legal description of the permit area and
maximum lateral and vertical extent of the disturbed area;
(((7))) (g) Expected area to be disturbed by surface mining during
(((a))) (i) the next twelve months, and (((b))) (ii) the following
twenty-four months;
(((8))) (h) Any applicable SEPA documents; and
(((9))) (i) Other pertinent data as required by the department.
(3) The reclamation permit shall be granted for the period required
to deplete essentially all minerals identified in the reclamation
permit on the land covered by the reclamation plan. The reclamation
permit shall be valid until the reclamation is complete unless the
permit is canceled by the department.
(4)(a) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 8 A new section is added to chapter 18.104 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 9 RCW 86.16.025 and 1995 c 8 s 4 are each amended to read as
follows:
(1) Subject to RCW 43.21A.068, with respect to such features as may
affect flood conditions, the department shall have authority to
examine, approve, or reject designs and plans for any structure or
works, public or private, to be erected or built or to be reconstructed
or modified upon the banks or in or over the channel or over and across
the floodway of any stream or body of water in this state.
(2)(a) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 10 RCW 70.95.205 and 1998 c 36 s 18 are each amended to read
as follows:
(1) Waste-derived soil amendments that meet the standards and
criteria in this section may apply for exemption from solid waste
permitting as required under RCW 70.95.170. The application shall be
submitted to the department in a format determined by the department or
an equivalent format. The application shall include:
(a) Analytical data showing that the waste-derived soil amendments
meet standards established under RCW 15.54.800; and
(b) Other information deemed appropriate by the department to
protect human health and the environment.
(2) After receipt of an application, the department shall review it
to determine whether the application is complete, and forward a copy of
the complete application to all interested jurisdictional health
departments for review and comment. Within forty-five days, the
jurisdictional health departments shall forward their comments and any
other information they deem relevant to the department, which shall
then give final approval or disapproval of the application. Every
complete application shall be approved or disapproved by the department
within ninety days after receipt. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application. If the application
is denied either within or after the ninety-day decision period, the
applicant may file a motion in the appropriate superior court
requesting the court to overturn the decision. This subsection applies
notwithstanding, and as an alternative to, any other provision of law
establishing appeal procedures. Applicants choosing to utilize this
appeal authority are deemed to have satisfied all administrative
remedies.
(3) The department, after providing opportunity for comments from
the jurisdictional health departments, may at any time revoke an
exemption granted under this section if the quality or use of the
waste-derived soil amendment changes or the management, storage, or end
use of the waste-derived soil amendment constitutes a threat to human
health or the environment.
(4) Any aggrieved party may appeal the determination by the
department in subsection (2) or (3) of this section to the pollution
control hearings board.
Sec. 11 RCW 15.54.820 and 1998 c 36 s 16 are each amended to read
as follows:
(1) After receipt from the department of the completed application
required by RCW 15.54.325, the department of ecology shall evaluate
whether the use of the proposed waste-derived fertilizer or the
micronutrient fertilizer as defined in RCW 15.54.270 is consistent with
the following:
(a) Chapter 70.95 RCW, the solid waste management act;
(b) Chapter 70.105 RCW, the hazardous waste management act; and
(c) 42 U.S.C. Sec. 6901 et seq., the resource conservation and
recovery act.
(2) The department of ecology shall apply the standards adopted in
RCW 15.54.800. If more stringent standards apply under chapter 173-303
WAC for the same constituents, the department of ecology must use the
more stringent standards.
(3) Within sixty days of receiving the completed application, the
department of ecology shall advise the department as to whether the
application complies with the requirements of subsections (1) and (2)
of this section. In making a determination, the department of ecology
shall consult with the department of health and the department of labor
and industries.
(4) A party aggrieved by a decision of the department of ecology to
issue a written approval under this section or to deny the issuance of
such an approval may appeal the decision to the pollution control
hearings board within thirty days of the decision. Review of such a
decision shall be conducted in accordance with either subsection (5) of
this section or with chapter 43.21B RCW((.)), with any subsequent
appeal of a decision of the hearings board ((shall be)) obtained in
accordance with RCW 43.21B.180.
(5)(a) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 12 RCW 43.21C.033 and 1995 c 347 s 422 are each amended to
read as follows:
(1)(a) Except as provided in subsection (2) of this section, the
responsible official shall make a threshold determination on a
completed application within ninety days after the application and
supporting documentation are complete. The applicant may request an
additional thirty days for the threshold determination. The
governmental entity responsible for making the threshold determination
shall by rule, resolution, or ordinance adopt standards, consistent
with rules adopted by the department to implement this chapter, for
determining when an application and supporting documentation are
complete.
(b) If the ninety-day deadline is not satisfied, the applicant may
file a motion in the appropriate superior court requesting court
approval of the application. If the application is denied either
within or after the ninety-day decision period, the applicant may file
a motion in the appropriate superior court requesting the court to
overturn the decision. This subsection applies notwithstanding, and as
an alternative to, any other provision of law establishing appeal
procedures. Applicants choosing to utilize this appeal authority are
deemed to have satisfied all administrative remedies.
(2) This section shall not apply to a city, town, or county that:
(a) By ordinance adopted prior to April 1, 1992, has adopted
procedures to integrate permit and land use decisions with the
requirements of this chapter; or
(b) Is planning under RCW 36.70A.040 and is subject to the
requirements of RCW 36.70B.090.
Sec. 13 RCW 77.115.040 and 2011 c 339 s 37 are each amended to
read as follows:
(1) All aquatic farmers, as defined in RCW 15.85.020, shall
register with the department. The application fee is one hundred five
dollars. The director shall assign each aquatic farm a unique
registration number and develop and maintain in an electronic database
a registration list of all aquaculture farms. The department shall
establish procedures to annually update the aquatic farmer information
contained in the registration list. The department shall coordinate
with the department of health using shellfish growing area
certification data when updating the registration list.
(2)(a) All decisions on registrations under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the registrations. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
(3) Registered aquaculture farms shall provide the department with
the following information:
(a) The name of the aquatic farmer;
(b) The address of the aquatic farmer;
(c) Contact information such as telephone, fax, web site, and e-mail address, if available;
(d) The number and location of acres under cultivation, including
a map displaying the location of the cultivated acres;
(e) The name of the landowner of the property being cultivated or
otherwise used in the aquatic farming operation;
(f) The private sector cultured aquatic product being propagated,
farmed, or cultivated; and
(g) Statistical production data.
(((3))) (4) The state veterinarian shall be provided with
registration and statistical data by the department.
NEW SECTION. Sec. 14 A new section is added to chapter 69.30 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 15 A new section is added to chapter 90.64 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 16 A new section is added to chapter 15.58 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 17 A new section is added to chapter 17.21 RCW
to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 18 RCW 16.65.030 and 2003 c 326 s 65 are each amended to
read as follows:
(1) No person shall operate a public livestock market without first
having obtained a license from the director. Application for a license
shall be in writing on forms prescribed by the director, and shall
include the following:
(a) A nonrefundable original license application fee of two
thousand dollars.
(b) A legal description of the property upon which the public
livestock market shall be located.
(c) A complete description and blueprints or plans of the public
livestock market physical plant, yards, pens, and all facilities the
applicant proposes to use in the operation of such public livestock
market.
(d) A financial statement, audited by a certified or licensed
public accountant, to determine whether or not the applicant meets the
minimum net worth requirements, established by the director by rule, to
construct and/or operate a public livestock market. If the applicant
is a subsidiary of a larger company, corporation, society, or
cooperative association, both the parent company and the subsidiary
company must submit a financial statement to determine whether or not
the applicant meets the minimum net worth requirements. All financial
statement information required by this subsection is confidential
information and not subject to public disclosure.
(e) The schedule of rates and charges the applicant proposes to
impose on the owners of livestock for services rendered in the
operation of such livestock market.
(f) The weekly or monthly sales day or days on which the applicant
proposes to operate his or her public livestock market sales and the
class of livestock that may be sold on these days.
(g) Projected source and quantity of livestock anticipated to be
handled.
(h) Projected gross dollar volume of business to be carried on, at,
or through the public livestock market during the first year's
operation.
(i) Facts upon which is based the conclusion that the trade area
and the livestock industry will benefit because of the proposed market.
(j) Other information as the director may require by rule.
(2) If the director determines that the applicant meets all the
requirements of subsection (1) of this section, the director shall
conduct a public hearing as provided by chapter 34.05 RCW, and shall
grant or deny an application for original license for a public
livestock market after considering evidence and testimony relating to
the requirements of this section and giving reasonable consideration
to:
(a) Benefits to the livestock industry to be derived from the
establishment and operation of the public livestock market proposed in
the application;
(b) The geographical area that will be affected;
(c) The conflict, if any, with sales days already allocated in the
area;
(d) The amount and class of livestock available for marketing in
the area;
(e) Buyers available to the proposed market; and
(f) Any other conditions affecting the orderly marketing of
livestock.
(3) Before a license is issued to operate a public livestock
market, the applicant must:
(a) Execute and deliver to the director a surety bond as required
under RCW 16.65.200;
(b) Provide evidence of a custodial account, as required under RCW
16.65.140, for the consignor's proceeds;
(c) Pay the appropriate license fee; and
(d) Provide other information required under this chapter and rules
adopted under this chapter.
(4)(a) All decisions under this section must be completed and the
decision returned to the applicant within ninety days of submitting the
registrations. If the ninety-day deadline is not satisfied, the
applicant may file a motion in the appropriate superior court
requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 19 A new section is added to chapter 70.95J
RCW to read as follows:
(1) All decisions on applications under this chapter must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(2) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 20 RCW 70.119A.110 and 2011 c 102 s 1 are each amended to
read as follows:
(1) No person may operate a group A public water system unless the
person first submits an application to the department and receives an
operating permit as provided in this section. A new application must
be submitted upon any change in ownership of the system.
(2) The department may require that each application include the
information that is reasonable and necessary to determine that the
system complies with applicable standards and requirements of the
federal safe drinking water act, state law, and rules adopted by the
department or by the state board of health.
(3)(a) Following its review of the application, its supporting
material, and any information received by the department in its
investigation of the application, the department shall issue or deny
the operating permit. The department shall act on initial permit
applications as expeditiously as possible, and shall in all cases
either grant or deny the application within ((one hundred twenty))
ninety days of receipt of the application or of any supplemental
information required to complete the application.
(b) The applicant for a permit shall be entitled to two different
appeals pathways:
(i) The applicant may file an appeal in accordance with chapter
34.05 RCW if the department denies the initial or subsequent
applications or imposes conditions or requirements upon the operator.
Any operator of a public water system that requests a hearing may
continue to operate the system until a decision is issued after the
hearing.
(ii) In the alternative, if the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application. If the application
is denied either within or after the ninety-day decision period, the
applicant may file a motion in the appropriate superior court
requesting the court to overturn the decision. This subsection applies
notwithstanding, and as an alternative to, any other provision of law
establishing appeal procedures. Applicants choosing to utilize this
appeal authority are deemed to have satisfied all administrative
remedies.
(4) At the time of initial permit application or at the time of
permit renewal the department may impose such permit conditions,
requirements for system improvements, and compliance schedules as it
determines are reasonable and necessary to ensure that the system will
provide a safe and reliable water supply to its users.
(5) Operating permits shall be issued for a term of one year, and
shall be renewed annually, unless the operator fails to apply for a new
permit or the department finds good cause to deny the application for
renewal.
(6) Each application shall be accompanied by an annual fee.
(7) The department shall adopt rules, in accordance with chapter
34.05 RCW, necessary to implement this section.
(8) The department shall establish by rule categories of annual
operating permit fees based on system size, complexity, and number of
service connections. Fees charged must be sufficient to cover, but may
not exceed, the costs to the department of administering a program for
safe and reliable drinking water. The department shall use operating
permit fees to monitor and enforce compliance by group A public water
systems with state and federal laws that govern planning, water use
efficiency, design, construction, operation, maintenance, financing,
management, and emergency response.
(9) The annual per-connection fee may not exceed one dollar and
fifty cents. The department shall phase-in implementation of any
annual fee increase greater than ten percent, and shall establish the
schedule for implementation by rule. Rules established by the
department prior to 2020 must limit the annual operating permit fee for
any public water system to no greater than one hundred thousand
dollars.
(10) The department shall notify existing public water systems of
the requirements of RCW 70.119A.030, 70.119A.060, and this section at
least one hundred twenty days prior to the date that an application for
a permit is required pursuant to RCW 70.119A.030, 70.119A.060, and this
section.
(11) The department shall issue one operating permit to any
approved satellite system management agency. Operating permit fees for
approved satellite system management agencies must be established by
the department by rule. Rules established by the department must set
a single fee based on the total number of connections for all group A
public water systems owned by a satellite management agency.
(12) For purposes of this section, "group A public water system"
and "system" mean those water systems with fifteen or more service
connections, regardless of the number of people; or a system serving an
average of twenty-five or more people per day for sixty or more days
within a calendar year, regardless of the number of service
connections.
Sec. 21 RCW 90.03.350 and 1995 c 8 s 6 are each amended to read
as follows:
(1) Except as provided in RCW 43.21A.068, any person, corporation
or association intending to construct or modify any dam or controlling
works for the storage of ten acre feet or more of water, shall before
beginning said construction or modification, submit plans and
specifications of the same to the department for examination and
approval as to its safety. Such plans and specifications shall be
submitted in duplicate, one copy of which shall be retained as a public
record, by the department, and the other returned with its approval or
rejection endorsed thereon. No such dam or controlling works shall be
constructed or modified until the same or any modification thereof
shall have been approved as to its safety by the department. Any such
dam or controlling works constructed or modified in any manner other
than in accordance with plans and specifications approved by the
department or which shall not be maintained in accordance with the
order of the department shall be presumed to be a public nuisance and
may be abated in the manner provided by law, and it shall be the duty
of the attorney general or prosecuting attorney of the county wherein
such dam or controlling works, or the major portion thereof, is
situated to institute abatement proceedings against the owner or owners
of such dam or controlling works, whenever he or she is requested to do
so by the department.
(2) A metals mining and milling operation regulated under chapter
232, Laws of 1994 is subject to additional dam safety inspection
requirements due to the special hazards associated with failure of a
tailings pond impoundment. The department shall inspect these
impoundments at least quarterly during the project's operation and at
least annually thereafter for the postclosure monitoring period in
order to ensure the safety of the dam or controlling works. The
department shall conduct additional inspections as needed during the
construction phase of the mining operation in order to ensure the safe
construction of the tailings impoundment.
(3)(a) All decisions on plan applications under this section must
be completed and the decision returned to the applicant within ninety
days of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 22 RCW 90.03.370 and 2003 c 329 s 1 are each amended to read
as follows:
(1)(a) All applications for reservoir permits are subject to the
provisions of RCW 90.03.250 through 90.03.320. But the party or
parties proposing to apply to a beneficial use the water stored in any
such reservoir shall also file an application for a permit, to be known
as the secondary permit, which shall be in compliance with the
provisions of RCW 90.03.250 through 90.03.320. Such secondary
application shall refer to such reservoir as its source of water supply
and shall show documentary evidence that an agreement has been entered
into with the owners of the reservoir for a permanent and sufficient
interest in said reservoir to impound enough water for the purposes set
forth in said application. When the beneficial use has been completed
and perfected under the secondary permit, the department shall take the
proof of the water users under such permit and the final certificate of
appropriation shall refer to both the ditch and works described in the
secondary permit and the reservoir described in the primary permit.
The department may accept for processing a single application form
covering both a proposed reservoir and a proposed secondary permit or
permits for use of water from that reservoir.
(b) The department shall expedite processing applications for the
following types of storage proposals:
(i) Development of storage facilities that will not require a new
water right for diversion or withdrawal of the water to be stored;
(ii) Adding or changing one or more purposes of use of stored
water;
(iii) Adding to the storage capacity of an existing storage
facility; and
(iv) Applications for secondary permits to secure use from existing
storage facilities.
(c) A secondary permit for the beneficial use of water shall not be
required for use of water stored in a reservoir where the water right
for the source of the stored water authorizes the beneficial use.
(2)(a) All decisions on applications under this section must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the application.
(b) If the application is denied either within or after the ninety-day decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
(3)(a) For the purposes of this section, "reservoir" includes, in
addition to any surface reservoir, any naturally occurring underground
geological formation where water is collected and stored for subsequent
use as part of an underground artificial storage and recovery project.
To qualify for issuance of a reservoir permit an underground geological
formation must meet standards for review and mitigation of adverse
impacts identified, for the following issues:
(i) Aquifer vulnerability and hydraulic continuity;
(ii) Potential impairment of existing water rights;
(iii) Geotechnical impacts and aquifer boundaries and
characteristics;
(iv) Chemical compatibility of surface waters and groundwater;
(v) Recharge and recovery treatment requirements;
(vi) System operation;
(vii) Water rights and ownership of water stored for recovery; and
(viii) Environmental impacts.
(b) Standards for review and standards for mitigation of adverse
impacts for an underground artificial storage and recovery project
shall be established by the department by rule. Notwithstanding the
provisions of RCW 90.03.250 through 90.03.320, analysis of each
underground artificial storage and recovery project and each
underground geological formation for which an applicant seeks the
status of a reservoir shall be through applicant-initiated studies
reviewed by the department.
(((3))) (4) For the purposes of this section, "underground
artificial storage and recovery project" means any project in which it
is intended to artificially store water in the ground through
injection, surface spreading and infiltration, or other department-approved method, and to make subsequent use of the stored water.
However, (a) this subsection does not apply to irrigation return flow,
or to operational and seepage losses that occur during the irrigation
of land, or to water that is artificially stored due to the
construction, operation, or maintenance of an irrigation district
project, or to projects involving water reclaimed in accordance with
chapter 90.46 RCW; and (b) RCW 90.44.130 applies to those instances of
claimed artificial recharge occurring due to the construction,
operation, or maintenance of an irrigation district project or
operational and seepage losses that occur during the irrigation of
land, as well as other forms of claimed artificial recharge already
existing at the time a groundwater subarea is established.
(((4))) (5) Nothing in chapter 98, Laws of 2000 changes the
requirements of existing law governing issuance of permits to
appropriate or withdraw the waters of the state.
(((5))) (6) The department shall report to the legislature by
December 31, 2001, on the standards for review and standards for
mitigation developed under subsection (((3))) (4) of this section and
on the status of any applications that have been filed with the
department for underground artificial storage and recovery projects by
that date.
(((6))) (7) Where needed to ensure that existing storage capacity
is effectively and efficiently used to meet multiple purposes, the
department may authorize reservoirs to be filled more than once per
year or more than once per season of use.
(((7))) (8) This section does not apply to facilities to recapture
and reuse return flow from irrigation operations serving a single farm
under an existing water right as long as the acreage irrigated is not
increased beyond the acreage allowed to be irrigated under the water
right.
(((8))) (9) In addition to the facilities exempted under subsection
(((7))) (8) of this section, this section does not apply to small
irrigation impoundments. For purposes of this section, "small
irrigation impoundments" means lined surface storage ponds less than
ten acre feet in volume used to impound irrigation water under an
existing water right where use of the impoundment: (a)(i) Facilitates
efficient use of water; or (ii) promotes compliance with an approved
recovery plan for endangered or threatened species; and (b) does not
expand the number of acres irrigated or the annual consumptive quantity
of water used. Such ponds must be lined unless a licensed engineer
determines that a liner is not needed to retain water in the pond and
to prevent groundwater contamination. Although it may also be composed
of other materials, a properly maintained liner may be composed of
bentonite. Water remaining in a small irrigation impoundment at the
end of an irrigation season may be carried over for use in the next
season. However, the limitations of this subsection (((8))) (9) apply.
Development and use of a small irrigation impoundment does not
constitute a change or amendment for purposes of RCW 90.03.380 or
90.44.055.
Sec. 23 RCW 90.58.140 and 2012 c 84 s 2 are each amended to read
as follows:
(1) A development shall not be undertaken on the shorelines of the
state unless it is consistent with the policy of this chapter and,
after adoption or approval, as appropriate, the applicable guidelines,
rules, or master program.
(2) A substantial development shall not be undertaken on shorelines
of the state without first obtaining a permit from the government
entity having administrative jurisdiction under this chapter.
A permit shall be granted:
(a) From June 1, 1971, until such time as an applicable master
program has become effective, only when the development proposed is
consistent with: (i) The policy of RCW 90.58.020; and (ii) after their
adoption, the guidelines and rules of the department; and (iii) so far
as can be ascertained, the master program being developed for the area;
(b) After adoption or approval, as appropriate, by the department
of an applicable master program, only when the development proposed is
consistent with the applicable master program and this chapter.
(3) The local government shall establish a program, consistent with
rules adopted by the department, for the administration and enforcement
of the permit system provided in this section. The administration of
the system so established shall be performed exclusively by the local
government.
(4) Except as otherwise specifically provided in subsection (11) of
this section, the local government shall require notification of the
public of all applications for permits governed by any permit system
established pursuant to subsection (3) of this section by ensuring that
notice of the application is given by at least one of the following
methods:
(a) Mailing of the notice to the latest recorded real property
owners as shown by the records of the county assessor within at least
three hundred feet of the boundary of the property upon which the
substantial development is proposed;
(b) Posting of the notice in a conspicuous manner on the property
upon which the project is to be constructed; or
(c) Any other manner deemed appropriate by local authorities to
accomplish the objectives of reasonable notice to adjacent landowners
and the public.
The notices shall include a statement that any person desiring to
submit written comments concerning an application, or desiring to
receive notification of the final decision concerning an application as
expeditiously as possible after the issuance of the decision, may
submit the comments or requests for decisions to the local government
within thirty days of the last date the notice is to be published
pursuant to this subsection. The local government shall forward, in a
timely manner following the issuance of a decision, a copy of the
decision to each person who submits a request for the decision.
If a hearing is to be held on an application, notices of such a
hearing shall include a statement that any person may submit oral or
written comments on an application at the hearing.
(5) The system shall include provisions to assure that construction
pursuant to a permit will not begin or be authorized until twenty-one
days from the date the permit decision was filed as provided in
subsection (6) of this section; or until all review proceedings are
terminated if the proceedings were initiated within twenty-one days
from the date of filing as defined in subsection (6) of this section
except as follows:
(a) In the case of any permit issued to the state of Washington,
department of transportation, for the construction and modification of
SR 90 (I-90) on or adjacent to Lake Washington, the construction may
begin after thirty days from the date of filing, and the permits are
valid until December 31, 1995;
(b)(i) In the case of any permit or decision to issue any permit to
the state of Washington, department of transportation, for the
replacement of the floating bridge and landings of the state route
number 520 Evergreen Point bridge on or adjacent to Lake Washington,
the construction may begin twenty-one days from the date of filing.
Any substantial development permit granted for the floating bridge and
landings is deemed to have been granted on the date that the local
government's decision to grant the permit is issued. This
authorization to construct is limited to only those elements of the
floating bridge and landings that do not preclude the department of
transportation's selection of a four-lane alternative for state route
number 520 between Interstate 5 and Medina. Additionally, the
Washington state department of transportation shall not engage in or
contract for any construction on any portion of state route number 520
between Interstate 5 and the western landing of the floating bridge
until the legislature has authorized the imposition of tolls on the
Interstate 90 floating bridge and/or other funding sufficient to
complete construction of the state route number 520 bridge replacement
and HOV program. For the purposes of this subsection (5)(b), the
"western landing of the floating bridge" means the least amount of new
construction necessary to connect the new floating bridge to the
existing state route number 520 and anchor the west end of the new
floating bridge;
(ii) Nothing in this subsection (5)(b) precludes the shorelines
hearings board from concluding that the project or any element of the
project is inconsistent with the goals and policies of the shoreline
management act or the local shoreline master program;
(iii) This subsection (5)(b) applies retroactively to any appeals
filed after January 1, 2012, and to any appeals filed on or after March
23, 2012, and expires June 30, 2014.
(c) Except as authorized in (b) of this subsection, construction
may be commenced no sooner than thirty days after the date of the
appeal of the board's decision is filed if a permit is granted by the
local government and (i) the granting of the permit is appealed to the
shorelines hearings board within twenty-one days of the date of filing,
(ii) the hearings board approves the granting of the permit by the
local government or approves a portion of the substantial development
for which the local government issued the permit, and (iii) an appeal
for judicial review of the hearings board decision is filed pursuant to
chapter 34.05 RCW. The appellant may request, within ten days of the
filing of the appeal with the court, a hearing before the court to
determine whether construction pursuant to the permit approved by the
hearings board or to a revised permit issued pursuant to the order of
the hearings board should not commence. If, at the conclusion of the
hearing, the court finds that construction pursuant to such a permit
would involve a significant, irreversible damaging of the environment,
the court shall prohibit the permittee from commencing the construction
pursuant to the approved or revised permit until all review proceedings
are final. Construction pursuant to a permit revised at the direction
of the hearings board may begin only on that portion of the substantial
development for which the local government had originally issued the
permit, and construction pursuant to such a revised permit on other
portions of the substantial development may not begin until after all
review proceedings are terminated. In such a hearing before the court,
the burden of proving whether the construction may involve significant
irreversible damage to the environment and demonstrating whether such
construction would or would not be appropriate is on the appellant;
(d) Except as authorized in (b) of this subsection, if the permit
is for a substantial development meeting the requirements of subsection
(11) of this section, construction pursuant to that permit may not
begin or be authorized until twenty-one days from the date the permit
decision was filed as provided in subsection (6) of this section.
If a permittee begins construction pursuant to (a), (b), (c), or
(d) of this subsection, the construction is begun at the permittee's
own risk. If, as a result of judicial review, the courts order the
removal of any portion of the construction or the restoration of any
portion of the environment involved or require the alteration of any
portion of a substantial development constructed pursuant to a permit,
the permittee is barred from recovering damages or costs involved in
adhering to such requirements from the local government that granted
the permit, the hearings board, or any appellant or intervener.
(6) Any decision on an application for a permit under the authority
of this section, whether it is an approval or a denial, shall,
concurrently with the transmittal of the ruling to the applicant, be
filed with the department and the attorney general. This shall be
accomplished by return receipt requested mail. A petition for review
of such a decision must be commenced within twenty-one days from the
date of filing of the decision.
(a) With regard to a permit other than a permit governed by
subsection (10) of this section, "date of filing" as used in this
section refers to the date of actual receipt by the department of the
local government's decision.
(b) With regard to a permit for a variance or a conditional use
governed by subsection (10) of this section, "date of filing" means the
date the decision of the department is transmitted by the department to
the local government.
(c) When a local government simultaneously transmits to the
department its decision on a shoreline substantial development with its
approval of either a shoreline conditional use permit or variance, or
both, "date of filing" has the same meaning as defined in (b) of this
subsection.
(d) The department shall notify in writing the local government and
the applicant of the date of filing by telephone or electronic means,
followed by written communication as necessary, to ensure that the
applicant has received the full written decision.
(7) Applicants for permits under this section have the burden of
proving that a proposed substantial development is consistent with the
criteria that must be met before a permit is granted. In any review of
the granting or denial of an application for a permit as provided in
RCW 90.58.180 (1) and (2), the person requesting the review has the
burden of proof.
(8) Any permit may, after a hearing with adequate notice to the
permittee and the public, be rescinded by the issuing authority upon
the finding that a permittee has not complied with conditions of a
permit. If the department is of the opinion that noncompliance exists,
the department shall provide written notice to the local government and
the permittee. If the department is of the opinion that the
noncompliance continues to exist thirty days after the date of the
notice, and the local government has taken no action to rescind the
permit, the department may petition the hearings board for a rescission
of the permit upon written notice of the petition to the local
government and the permittee if the request by the department is made
to the hearings board within fifteen days of the termination of the
thirty-day notice to the local government.
(9) The holder of a certification from the governor pursuant to
chapter 80.50 RCW shall not be required to obtain a permit under this
section.
(10) Any permit for a variance or a conditional use issued with
approval by a local government under their approved master program must
be submitted to the department for its approval or disapproval.
(11)(a) An application for a substantial development permit for a
limited utility extension or for the construction of a bulkhead or
other measures to protect a single-family residence and its appurtenant
structures from shoreline erosion shall be subject to the following
procedures:
(i) The public comment period under subsection (4) of this section
shall be twenty days. The notice provided under subsection (4) of this
section shall state the manner in which the public may obtain a copy of
the local government decision on the application no later than two days
following its issuance;
(ii) The local government shall issue its decision to grant or deny
the permit within twenty-one days of the last day of the comment period
specified in (a)(i) of this subsection; and
(iii) If there is an appeal of the decision to grant or deny the
permit to the local government legislative authority, the appeal shall
be finally determined by the legislative authority within thirty days.
(b) For purposes of this section, a limited utility extension means
the extension of a utility service that:
(i) Is categorically exempt under chapter 43.21C RCW for one or
more of the following: Natural gas, electricity, telephone, water, or
sewer;
(ii) Will serve an existing use in compliance with this chapter;
and
(iii) Will not extend more than twenty-five hundred linear feet
within the shorelines of the state.
(12)(a) All decisions on permits under this section must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the permit.
(b) If the permit is denied either within or after the ninety-day
decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
Sec. 24 RCW 70.118B.030 and 2007 c 343 s 4 are each amended to
read as follows:
(1) A person may not install or operate a large on-site sewage
system without an operating permit as provided in this chapter after
July 1, 2009. The owner of the system is responsible for obtaining a
permit.
(2) The department shall issue operating permits in accordance with
the rules adopted under RCW 70.118B.040.
(3) The department shall ensure the system meets all applicable
siting, design, construction, and installation requirements prior to
issuing an initial operating permit. Prior to renewing an operating
permit, the department may review the performance of the system to
determine compliance with rules and any permit conditions.
(4) At the time of initial permit application or at the time of
permit renewal the department shall impose those permit conditions,
requirements for system improvements, and compliance schedules as it
determines are reasonable and necessary to ensure that the system will
be operated and maintained properly. Each application must be
accompanied by a fee as established in rules adopted by the department.
(5) Operating permits shall be issued for a term of one year, and
shall be renewed annually, unless the operator fails to apply for a new
permit or the department finds good cause to deny the application for
renewal.
(6) Each permit may be issued only for the site and owner named in
the application. Permits are not transferable or assignable except
with the written approval of the department.
(7) The department may deny an application for a permit or modify,
suspend, or revoke a permit in any case in which it finds that the
permit was obtained by fraud or there is or has been a failure,
refusal, or inability to comply with the requirements of this chapter
or the standards or rules adopted under this chapter. RCW 43.70.115
governs notice of denial, revocation, suspension, or modification and
provides the right to an adjudicative proceeding to the permit
applicant or permittee.
(8) For systems with design flows of more than fourteen thousand
five hundred gallons per day, the department shall adopt rules to
ensure adequate public notice and opportunity for review and comment on
initial large on-site sewage system permit applications and subsequent
permit applications to increase the volume of waste disposal or change
effluent characteristics. The rules must include provisions for notice
of final decisions. Methods for providing notice may include
electronic mail, posting on the department's internet site, publication
in a local newspaper, press releases, mailings, or other means of
notification the department determines appropriate.
(9) A person aggrieved by the issuance of an initial permit, or by
the issuance of a subsequent permit to increase the volume of waste
disposal or to change effluent characteristics, for systems with design
flows of more than fourteen thousand five hundred gallons per day, has
the right to an adjudicative proceeding. The application for an
adjudicative proceeding must be in writing, state the basis for
contesting the action, include a copy of the decision, be served on and
received by the department within twenty-eight days of receipt of
notice of the final decision, and be served in a manner that shows
proof of receipt. An adjudicative proceeding conducted under this
subsection is governed by chapter 34.05 RCW.
(10) Any permit issued by the department of ecology for a large
on-site sewage system under chapter 90.48 RCW is valid until it first
expires after July 22, 2007. The system owner shall apply for an
operating permit at least one hundred twenty days prior to expiration
of the department of ecology permit.
(11) Systems required to meet operator certification requirements
under chapter 70.95B RCW must continue to meet those requirements as a
condition of the department operating permit.
(12)(a) All decisions on permits under this section must be
completed and the decision returned to the applicant within ninety days
of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the permit.
(b) If the permit is denied either within or after the ninety-day
decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.
NEW SECTION. Sec. 25 A new section is added to chapter 90.66 RCW
to read as follows:
(1) All decisions on permits or transfers under this section must
be completed and the decision returned to the applicant within ninety
days of submitting the application. If the ninety-day deadline is not
satisfied, the applicant may file a motion in the appropriate superior
court requesting court approval of the permit.
(2) If the permit is denied either within or after the ninety-day
decision period, the applicant may file a motion in the appropriate
superior court requesting the court to overturn the decision. This
subsection applies notwithstanding, and as an alternative to, any other
provision of law establishing appeal procedures. Applicants choosing
to utilize this appeal authority are deemed to have satisfied all
administrative remedies.