AN ACT Relating to protecting private property rights by aligning the jurisdictional scope of the state water pollution control act with the jurisdictional scope of the federal clean water act; amending RCW 90.48.010, 90.48.020, 90.48.030, and 90.48.150; and creating a new section.

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

(2) The legislature finds that whereas the federal government is a government of enumerated powers only, the state of Washington has broader powers to legislate in furtherance of the general health, safety, and welfare of Washington citizens. Therefore, the state must be especially vigilant of how its laws and rules affect private property rights.

(3) The legislature finds that the jurisdictional scope of the state water pollution control act, chapter 90.48 RCW, is broader than the jurisdictional scope of the federal clean water act, 33 U.S.C. Sec. 1251 et seq., which applies to waters of the United States, as chapter 90.48 RCW regulates waters beyond those waters that qualify as waters of the United States.

(4) The legislature finds that relative to other states that have water pollution control laws with scopes of jurisdiction matching the federal clean water act, Washington is at a competitive disadvantage regarding economic development opportunities because Washington overregulates isolated waters that are not integral to waters used in commerce.

(5) The legislature finds that the scope of regulation under the federal clean water act represents a better balance between protecting water quality, respecting private property rights, and providing economic development opportunities than does the scope of regulation under chapter 90.48 RCW, the state water pollution control act. It is in Washington's best interest to amend the jurisdiction of chapter 90.48 RCW, the state water pollution control act, to correspond to the jurisdiction of the federal clean water act, as articulated by the United States supreme court in Rapanos v. United States, 547 U.S. 715 (2006).

(6) The legislature finds that the United States environmental protection agency and the United States army corps of engineers, acting under the color of the authority of congress to regulate interstate commerce, recently proposed a new administrative rule that defines the use of the term "waters of the United States" as it appears in the federal clean water act. This proposed rule purports to be reflective of statutory language, science, public comment, agency expertise, and specific holdings of the United States supreme court. However, the legislature finds that the proposed new administrative rule likely conflicts with United States supreme court decisions and is beyond the scope of the agencies' authority to promulgate and, therefore, has no applicability to the regulation of water quality in Washington. It is the legislature's intent that the scope of the waters subject to regulation under chapter 90.48 RCW, the state water pollution control act, correspond to the scope of the waters subject to regulation under the federal clean water act before the adoption of this new rule, as set out in 33 C.F.R. Sec. 328.3 (2006) and articulated by the United States supreme court in Rapanos v. United States, 547 U.S. 715 (2006).

Sec. 2.  RCW 90.48.010 and 1973 c 155 s 1 are each amended to read as follows:

(1) It is declared to be the public policy of the state of Washington to maintain the highest possible standards to ((insure)) ensure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington. Consistent with this policy, the state of Washington will exercise its powers, as fully and as effectively as possible, while respecting private property rights, to retain and secure high quality for all waters of the state.

(2) The state of Washington in recognition of the federal government's interest in the quality of the navigable waters of the United States, of which certain portions thereof are within the jurisdictional limits of this state, proclaims a public policy of working cooperatively with the federal government in a joint effort to extinguish the sources of water quality degradation of waters of the United States, while at the same time preserving and vigorously exercising state powers to ((insure)) ensure that present and future standards of water quality within the state shall be determined by the citizenry, through and by the efforts of state government, of the state of Washington.

Sec. 3.  RCW 90.48.020 and 2002 c 161 s 4 are each amended to read as follows:

(1) Whenever the word "person" is used in this chapter, it shall be construed to include any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual or any other entity whatsoever.

(2) Wherever the words "waters of the state" shall be used in this chapter, they shall be construed to include only those lakes, rivers, ponds, streams, inland waters, ((underground waters,)) salt waters, and ((all)) other surface waters and watercourses within the jurisdiction of the state of Washington that are "waters of the United States" as that term is defined in the federal clean water act, 33 U.S.C. Sec. 1251 et seq. (2006) and 33 C.F.R. Sec. 328.3 (2006), as that definition existed and was interpreted by the United States supreme court in its decision in Rapanos v. United States, 547 U.S. 715 (2006).

(3) Whenever the word "pollution" is used in this chapter, it shall be construed to mean such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

(4) Wherever the word "department" is used in this chapter it shall mean the department of ecology.

(5) Whenever the word "director" is used in this chapter it shall mean the director of ecology.

(6) Whenever the words "aquatic noxious weed" are used in this chapter, they have the meaning prescribed under RCW 17.26.020.

(7) Whenever the words "general sewer plan" are used in this chapter they shall be construed to include all sewerage general plans, sewer general comprehensive plans, plans for a system of sewerage, and other plans for sewer systems adopted by a local government entity including but not limited to cities, towns, public utility districts, and water-sewer districts.

Sec. 4.  RCW 90.48.030 and 1987 c 109 s 123 are each amended to read as follows:

(1) Subject to subsection (2) of this section, the department ((shall have)) has the jurisdiction to control and prevent the pollution of streams, lakes, rivers, ponds, inland waters, salt waters, water courses, and other surface ((and underground)) waters of the state of Washington.

Sec. 5.  RCW 90.48.150 and 1945 c 216 s 21 are each amended to read as follows:

(1) This chapter shall not be construed as repealing any of the laws governing the pollution of the waters of the state, but shall be held and construed as ancillary to and supplementing the same and an addition to the laws now in force, except as the same may be in direct conflict herewith.

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