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AN ACT Relating to protection and restoration of water quality and salmon and shellfish habitat; adding a new chapter to Title 90 RCW.


NEW SECTION. Sec. 1. Legislative finding and declaration. (1) Washington’s waters and fisheries resources are critical to the economic and environmental well-being of this state’s citizens but the state’s water and fisheries resources are seriously threatened from impacts caused from agricultural practices. The legislature finds these problems pose great uncertainty for its citizens and in particular for those who depend on these resources for their economic and environmental well-being, and that they increase the risk of federal or judicial interventions stemming from noncompliance with state and federal laws.

(2) The legislature hereby finds: (a) Streamside buffers are essential for the protection and restoration of salmon and shellfish habitat, other fisheries resources, and water quality, (b) In their natural state, streamside buffers provide many valuable social and ecological services, including: controlling erosion, flooding, and stormwater runoff, protecting water resources by filtering pollutants, providing for groundwater recharge, and providing for habitat for many species of fish, shellfish, and wildlife, (c) Streamside protection is currently provided on forestry and urban lands through the Forest Practices and Growth Management Acts, whereas, past and current farm and agricultural land use practices continue to destroy or severely impact natural streamside buffers, salmon habitat, water quality and fisheries resources, and (d) Buffers adjacent to waters of the state are essential to protect and restore the productive capacity of salmonid and shellfish habitat and survival of the fisheries resources;

(2) The legislature declares that all waters of the state as defined by WAC 222-16 shall be protected from water pollution caused by livestock and certain agricultural practices.

NEW SECTION. Sec. 2. DEFINITIONS.--Whenever used in this act, the term:

(1) "Agricultural activities" means the production of crops or livestock, farming, ranching, or grazing of domestic animals.

(2) "Department" means the Washington department of ecology.

(3) "Director" means the director of the Washington department of ecology.

(4) "Farm and agricultural lands" mean the same as defined in RCW 84.34.020(2).

(5) "Livestock" mean the same as defined in RCW 16.50.110.

(6) "Person" means any individual, partnership, private, public, or municipal corporation, county, the department or other state or local governmental entity, or association of individuals of whatever nature.

(7) "Streamside buffer" means the area adjacent to aquatic systems with flowing or intermittent waters, that contains both aquatic and terrestrial ecosystems that mutually influence each other. For purposes of this chapter, streamside buffer widths shall be consistent with Ecosystem Standard B14A as approved in 1994 by the Washington State Conservation Commission, unless otherwise administratively determined by the department, in consultation with the Department of Fish and Wildlife, utilizing the best available science.

NEW SECTION. Sec. 3. GENERAL PROVISIONS.-- (1) Abrogation and Greater Restrictions. It is not intended that this chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this chapter imposes greater restriction, the provisions of this chapter shall prevail.

(2) Interpretation. This chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter. However, if any provision of any other chapter of state or general purpose local government conflicts with this chapter, that which provides more protection to water quality and streamside buffers applies unless specifically provided otherwise in this chapter.

(3) The department shall establish administrative rules as necessary to implement this Act.

NEW SECTION. Sec. 4. RESTRICTED AND ALLOWED ACTIVITIES.--(1) Restricted Activities. Except as provided under subsection (2) and (3) of this section, a person shall not allow livestock or conduct agricultural activities on farm and agricultural lands in the surface waters of the state or within the streamside buffers.

(2) The director may allow an exemption for the restrictions under subsection (1) of this section if the director finds that:

(a) The livestock are located at a livestock crossing or watering areas that are designed, constructed, operated and maintained to minimize to the fullest extent practicable water pollution or impacts to streamside buffers caused by livestock;

(b) The livestock or agricultural practices do not contribute to a violation of, or impairment of, or prevent the maintenance and recovery of the applicable water quality standards and streamside buffer functions; or

(c) An approved state or federal resource management plan that has attained state water quality standards and provides for the following streamside buffer functions: recruitment of large woody debris to the stream, shade, bank integrity and root reinforcement, and runoff filtration.

(3) The restrictions shall not apply to the following activities:

(a) The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, or alteration of the streamside buffer by changing existing topography, water conditions, or water resources;

(b) Forest practices governed under chapter 76.09 RCW and its rules, including the cutting of existing trees cultivated by agricultural methods in growing cycles shorter than ten years, except for those practices that convert forest land to another use;

(c) Normal maintenance, minor modifications, repair, or operation of existing serviceable structures, drainage ditches, buildings, or facilities within a buffer zone where operations do not adversely impact streamside buffer functions provided that written notice is submitted to the department at least ten days prior to the commencement of such work and impacts are minimized;

(d) Existing non-commercial lawn and garden care, and maintenance;

(e) Maintenance and operation of existing orchards; or

(f) Any incident in which livestock gain access to the waters of the state or designated streamside buffers accidentally or by some manner not within the control of the livestock owner provided the situation is promptly corrected and action is taken to prevent future incidents from occurring again.

(4) Exceptions. (a) If application of this chapter would deny all reasonable use of the property, the landowner may apply for a reasonable use exception the department.

(b) The department shall review the application in consultation with the attorney general and shall conduct a public hearing. The department shall make a final decision based on the following criteria:

(i) the application of this chapter would deny all reasonable use of the property;

(ii) there is no other reasonable use with less impact on the streamside buffer;

(iii) the proposed activitiy or development does not pose an unreasonable threat to the public health, safety, or welfare on or off the proposed site and is consistent with the general purposes of this chapter and the public interest; and

(iv) any alterations permitted to the streamside buffer shall be the minimum necessary to allow for reasonable use of the property; and any authorized alteration to the streamside buffer under this chapter shall be subject to conditions established by the department in consultation with the department of fish and wildlife, including, but not limited to, mitigation under an approved mitigation plan.

NEW SECTION. Sec.5. ENFORCEMENT.--A person may commence a civil action against any person, including the state of Washington, alleged in violation of section 3 of this act. The action is subject to the procedural requirements and substantive limitations applicable to metals mining and milling law violations in RCW 78.56.140.

NEW SECTION. Sec. 6. COOPERATIVE RESTORATION AND ENHANCEMENT.--(1) The department shall assist those landowners who will voluntarily restore and enhance streamside functions. The department shall provide coordination for conservation districts and regional fisheries enhancement and other local conservation groups who will assist landowners with voluntary and cooperative restoration and enhancement projects.

(2) Any person who will voluntarily restore and enhance streamside functions may be eligible to obtain funds from those sources intended to provide habitat, water quality and resource conservation benefits. The department shall assist those landowners in the seeking necessary funding.

(3) By December 31, 1997, the department, in cooperation with the department of agriculture and conservation commission, shall develop recommendations for the legislature that will provide additional tax and other incentives for those landowners who will actively restore and enhance streamside functions.

NEW SECTION. Sec.7. SEVERABILITY.--If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec.8. This act is necessary for the preservation of the public resources, peace, health, safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1998.

NEW SECTION. Sec.9. CAPTIONS NOT LAW. Section headings used in this chapter are not any part of the law.

NEW SECTION. Sec.10. Sections 1 through 8 of this act shall constitute a new chapter in Title 90 RCW.


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