S-0693.2

SENATE BILL 5626

BySenators Takko, Warnick, Hobbs, Honeyford, and Van De Wege

AN ACT Relating to ensuring the safe and productive cultivation of shellfish; amending RCW 90.48.260 and 43.21C.0383; adding new sections to chapter 90.48 RCW; creating a new section; making appropriations; and declaring an emergency.

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

NEW SECTION.  Sec. 2. A new section is added to chapter 90.48 RCW to read as follows:

By May 15, 2019, the department shall authorize the use of imidacloprid to control infestations of burrowing shrimp in Willapa Bay and Grays Harbor for the 2019 treatment season. The authorization must be issued to any entity that applied for, or was part of any group that applied for, a national pollution discharge elimination system permit as of January 2016. Such an authorization must be limited to an aggregate maximum of one thousand acres of imidacloprid application during the 2019 treatment season.

NEW SECTION.  Sec. 3. A new section is added to chapter 90.48 RCW to read as follows:

(1) By April 15, 2020, the department shall issue a national pollutant discharge elimination system permit for the use of pesticides to control infestations of burrowing shrimp in association with the cultivation of shellfish. With the exception of the requirements set forth in subsection (2) of this section, the department may not impose limitations, standards, or monitoring requirements in connection with such a permit that are any more stringent than those contained in the federal registration for any pesticide subject to the permit.

(2) The national pollutant discharge elimination system permit issued pursuant to this section must comply with the following requirements:

(a) The permit must limit the total treated acreage under the permit to an aggregate maximum of one thousand acres per year; and

(b) The permit must prohibit the use of helicopters to apply pesticides under the permit.

(3) The use of pesticides to control burrowing shrimp in connection with the cultivation of shellfish under a permit issued pursuant to this section is exempt from the requirements of RCW 90.48.160, chapter 43.21C RCW, and chapter 173-204 WAC.

(4) For the purposes of this section, "cultivation of shellfish" means the cultivation of shellfish on private or public facilities, or both, located within the marine waters of the state in Willapa Bay and Grays Harbor.

Sec. 4. RCW 90.48.260 and 2012 1st sp.s. c 1 s 313 are each amended to read as follows:

(1) The department of ecology is hereby designated as the state water pollution control agency for all purposes of the federal clean water act as it exists on February 4, 1987, and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act. With regard to the national estuary program established by section 320 of that act, the department shall exercise its responsibility jointly with the Puget Sound partnership, created in RCW 90.71.210. The department of ecology may delegate its authority under this chapter, including its national pollutant discharge elimination permit system authority and duties regarding animal feeding operations and concentrated animal feeding operations, to the department of agriculture through a memorandum of understanding. Until any such delegation receives federal approval, the department of agriculture's adoption or issuance of animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives pertaining to water quality shall be accomplished after reaching agreement with the director of the department of ecology. Adoption or issuance and implementation shall be accomplished so that compliance with such animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives will achieve compliance with all federal and state water pollution control laws. With regard to the regulation of pesticides used to control burrowing shrimp on tidelands in Willapa Bay and Grays Harbor, the department shall delegate its authority under this chapter, including its national pollutant discharge elimination permit system authority and duties, to the department of agriculture through a memorandum of understanding, effective July 1, 2020. Until such a delegation of authority receives federal approval, the department of agriculture's adoption or issuance of water quality rules, permits, programs, and directives regarding the application of pesticides used to control burrowing shrimp on tidelands in Willapa Bay and Grays Harbor must be accomplished after reaching agreement with the director of the department. Adoption or issuance and implementation must be accomplished so that compliance with all rules, permits, programs, and directives will achieve compliance with all federal and state water pollution control laws. The powers granted herein include, among others, and notwithstanding any other provisions of this chapter or otherwise, the following:

(a) Complete authority to establish and administer a comprehensive state point source waste discharge or pollution discharge elimination permit program which will enable the department to qualify for full participation in any national waste discharge or pollution discharge elimination permit system and will allow the department to be the sole agency issuing permits required by such national system operating in the state of Washington subject to the provisions of RCW 90.48.262(2). Program elements authorized herein may include, but are not limited to: (i) Effluent treatment and limitation requirements together with timing requirements related thereto; (ii) applicable receiving water quality standards requirements; (iii) requirements of standards of performance for new sources; (iv) pretreatment requirements; (v) termination and modification of permits for cause; (vi) requirements for public notices and opportunities for public hearings; (vii) appropriate relationships with the secretary of the army in the administration of his or her responsibilities which relate to anchorage and navigation, with the administrator of the environmental protection agency in the performance of his or her duties, and with other governmental officials under the federal clean water act; (viii) requirements for inspection, monitoring, entry, and reporting; (ix) enforcement of the program through penalties, emergency powers, and criminal sanctions; (x) a continuing planning process; and (xi) user charges.

(b) The power to establish and administer state programs in a manner which will ensure the procurement of moneys, whether in the form of grants, loans, or otherwise; to assist in the construction, operation, and maintenance of various water pollution control facilities and works; and the administering of various state water pollution control management, regulatory, and enforcement programs.

(c) The power to develop and implement appropriate programs pertaining to continuing planning processes, area-wide waste treatment management plans, and basin planning.

(2) The governor shall have authority to perform those actions required of him or her by the federal clean water act.

(3) By July 31, 2012, the department shall:

(a) Reissue without modification and for a term of one year any national pollutant discharge elimination system municipal stormwater general permit applicable to western Washington municipalities first issued on January 17, 2007; and

(b) Issue an updated national pollutant discharge elimination system municipal stormwater general permit applicable to western Washington municipalities for any permit first issued on January 17, 2007. An updated permit issued under this subsection shall become effective beginning August 1, 2013.

(i) Provisions of the updated permit issued under (b) of this subsection relating to new requirements for low-impact development and review and revision of local development codes, rules, standards, or other enforceable documents to incorporate low-impact development principles must be implemented simultaneously. These requirements may go into effect no earlier than December 31, 2016, or the time of the scheduled update under RCW 36.70A.130(5), as existing on July 10, 2012, whichever is later.

(ii) Provisions of the updated permit issued under (b) of this subsection related to increased catch basin inspection and illicit discharge detection frequencies and application of new stormwater controls to projects smaller than one acre may go into effect no earlier than December 31, 2016, or the time of the scheduled update under RCW 36.70A.130(5), as existing on July 10, 2012, whichever is later.

(4) By July 31, 2012, the department shall:

(a) Reissue without modification and for a term of two years any national pollutant discharge elimination system municipal stormwater general permit applicable to eastern Washington municipalities first issued on January 17, 2007; and

(b) Issue an updated national pollutant discharge elimination system municipal stormwater general permit for any permit first issued on January 17, 2007, applicable to eastern Washington municipalities. An updated permit issued under this subsection becomes effective August 1, 2014.

NEW SECTION.  Sec. 5. A new section is added to chapter 90.48 RCW to read as follows:

(1) All powers, duties, and functions of the department of ecology pertaining to this chapter as it relates to the regulation of pesticides used to control burrowing shrimp on tidelands in Willapa Bay and Grays Harbor are transferred to the department of agriculture effective July 1, 2020. All references to the director or the department of ecology in the Revised Code of Washington mean the director or the department of agriculture when referring to the functions transferred in this section. The department shall work expeditiously with the department of agriculture to obtain any and all approvals for the department of agriculture to assume national pollutant discharge elimination system permit issuance and enforcement authority for the regulation of pesticides used to control burrowing shrimp on tidelands in Willapa Bay and Grays Harbor under the federal clean water act.

(2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of ecology pertaining to the powers, duties, and functions transferred must be delivered to the custody of the department of agriculture. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the department of ecology in carrying out the powers, duties, and functions transferred must be made available to the department of agriculture. All funds, credits, or other assets held in connection with the powers, duties, and functions transferred are assigned to the department of agriculture.

(b) Any appropriations made to the department of ecology for carrying out the powers, duties, and functions transferred are, on the effective date of this section, transferred and credited to the department of agriculture.

(c) Whenever any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.

(3) All employees of the department of ecology engaged in performing the powers, duties, and functions transferred are transferred to the jurisdiction of the department of agriculture. All employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the department of agriculture to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.

(4) All rules and all pending business before the department of ecology pertaining to the powers, duties, and functions transferred shall be continued and acted upon by the department of agriculture. All existing contracts and obligations remain in full force and shall be performed by the department of agriculture.

(5) The transfer of the powers, duties, functions, and personnel of the department of ecology does not affect the validity of any act performed before the effective date of this section.

(6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

(7) All classified employees of the department of ecology assigned to the department of agriculture under this section whose positions are within an existing bargaining unit description at the department of agriculture must become a part of the existing bargaining unit at the department of agriculture and are considered an appropriate inclusion or modification of the existing bargaining unit under the provisions of chapter 41.80 RCW.

(b) Permissible department expenses include, but are not limited to, oversight and participation on a technical advisory committee, technical assistance, planning, and reporting activities.

(c) The department of agriculture may also use the funding provided in this section, as needed, for payments to Washington State University, the United States department of agriculture, and outside consultants for their participation in the monitoring program and technical advisory committee.

(2) The department of agriculture must report to the appropriate committees of the legislature by June 30, 2020, on the progress and results of the monitoring program.

Sec. 8. RCW 43.21C.0383 and 2008 c 37 s 2 are each amended to read as follows:

The following waste discharge permit actions are not subject to the requirements of RCW 43.21C.030(2)(c):

(1) For existing discharges, the issuance, reissuance, or modification of a waste discharge permit that contains conditions no less stringent than federal effluent limitations and state rules;

(2) The issuance of a construction stormwater general permit under chapter 90.48 RCW for a proposal disturbing less than five acres. The exemption in this subsection does not apply if, under rules adopted by the department of ecology, the proposal would otherwise be subject to the requirements of RCW 43.21C.030(2)(c); and

(3) The issuance of a national pollutant discharge elimination system permit or waste discharge permit pursuant to section 2 or 3 of this act for the use of pesticides to control infestations of burrowing shrimp in association with the cultivation of shellfish.

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