H-1950.1           _______________________________________________
                             SUBSTITUTE HOUSE BILL 1448
                   _______________________________________________
State of Washington               56th Legislature             1999 Regular Session
By House Committee on Agriculture & Ecology (originally sponsored by
Representatives Linville, G. Chandler, Cooper, Ericksen, Anderson andMorris)
Read first time 02/22/1999.
     AN ACT Relating to clarifying state agency responsibility for
cleaning up contaminated sediments; amending RCW 79.90.465; adding a
new section to chapter 79.90 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     {+ NEW SECTION. +}  Sec. 1.  The legislature recognizes that many
of the state's harbors are impacted from decades of urban population
growth as well as transportation, industrial, and commercial uses.  The
state reaffirms the critical importance of its harbor areas for the
constitutionally recognized purposes of commerce and navigation, and
also recognizes that its estuaries and harbors are critical to the
health of its aquatic environment, including endangered species ofsalmon.
     The legislature acknowledges that in some harbors the state, as
both a regulator and a manager of aquatic lands, must be a cooperative
partner in comprehensive community efforts to revitalize and restore
urban harbors, and prepare recovery plans that address the requirements
of the federal endangered species act.
     In order to encourage the cleanup of contaminated areas of urban
harbors, revitalize important water-dependent industries, improve
habitat for native fish populations, and establish certainty for
shoreline communities, the legislature declares its intent to
centralize and streamline the state's decision-making processes for the
comprehensive cleanup of urban harbors.  The department of ecology
shall assume primary responsibility, on behalf of the state, for
working cooperatively with local communities to seek expeditious and
innovative cleanup solutions for state-owned aquatic lands.  The
department of ecology's decisions for remediation of state-owned
aquatic lands shall be binding on all other state agencies.
     The legislature also declares that it intends to use existing laws
and powers, particularly chapter 70.105D RCW, the model toxics control
act, and chapter 90.48 RCW, to effect the cleanup of urban harbors.
The policies and processes of these laws, combined with the state
environmental policy act, chapter 43.21C RCW, shall be the primary
basis of the department of ecology's urban harbor cleanup decision.
     The legislature recognizes that local governments, through the
shoreline management act, chapter 90.58 RCW, and the growth management
act, chapter 36.70A RCW, have planned comprehensively in conjunction
with the state and with port districts for the land uses that will
occur on and around urban harbors.  These land use planning processes
are recognized to be the basis of land use planning for urban harbors.
     In all land management matters involving state-owned aquatic land
other than the cleanup of state-owned aquatic land, the department of
natural resources shall retain all of its powers and responsibilities
for implementing chapters 79.90 through 79.96 RCW and shall continue to
exercise all of these existing land management powers andresponsibilities.
     {+ NEW SECTION. +}  Sec. 2.  A new section is added to chapter
79.90 RCW to read as follows:
     (1) The state finds that it may be appropriate to use state-owned
aquatic lands as part of a remedial action for contaminated sediments
from state or federally required cleanups of aquatic areas, or as
mitigation for the habitat impacts of cleanup or disposal actions.  In
examining a proposal to use state-owned aquatic lands for disposal or
habitat mitigation, the department of ecology, as required under
chapters 70.105D, 90.48, and 43.21C RCW, shall evaluate a range of
alternatives that consider habitat impacts, impacts to navigation and
water-borne commerce, cost, and the benefits of expeditiously reducing
the availability of hazardous substances to the environment. In
examining remediation alternatives, the department of ecology shall
follow constitutional mandates to reserve harbor areas for navigation
and commerce.     (2) The department of ecology may require the disposal or
containment of contaminated sediments on state-owned aquatic lands only
in an approved multi-user confined aquatic disposal site, or when the
following conditions are met:
     (a) The department finds that such use presents the most
environmentally protective option among a reasonable range of upland,
nearshore, and in-water disposal options;
     (b) The department of ecology finds that there are no unacceptable
adverse environmental impacts from the loss of nearshore vegetated
aquatic habitat; and
     (c) The normal use of harbor areas for commerce and navigation is
not impaired.
     (3) In examining alternatives for remedial action, the department
shall consult with affected state agencies, federal agencies, tribes,
port districts, and local governments.  In selecting disposal sites
under this section, the department shall strive to limit the number of
separate disposal locations.
     (4) If the department of ecology, in exercising its regulatory
authority to require cleanup of contaminated sediments, chooses a
remedial action or concurs with an action required under the
comprehensive environmental response, compensation, and liability act
of 1980 that requires the use of state-owned aquatic land for
containment or disposal of sediments, or for mitigation of habitat, the
department of natural resources shall issue a use authorization within
sixty days of the date the department of ecology issues or concurs in
a final remedial action.  This use authorization must contain the
provisions needed to expeditiously allow the use of state-owned aquatic
lands for the implementation of those activities required, or concurred
with, by the department of ecology.  The use authorization may not
contain terms or conditions which, in the judgment of the department of
ecology, delay or alter the purpose of the remedial action.  Any such
use authorization may contain measures to indemnify or otherwise hold
the state harmless from any additional liability arising out of the use
of state-owned aquatic lands.  Nothing in this section shall be
construed to impose liability on the state as a result of the
department of ecology's exercise of its regulatory authority to requirecleanup.
     (5) This section only applies to the cleanup and mitigation of the
impacts of cleanup of state-owned aquatic land.  It does not affect the
powers and responsibilities of the department of natural resources for
implementing chapters 79.90 through 79.96 RCW in any other land
management matters.
     Sec. 3.  RCW 79.90.465 and 1984 c 221 s 4 are each amended to read
as follows:     The definitions in this section apply throughout chapters 79.90
through 79.96 RCW.
     (1) "Water-dependent use" means a use which cannot logically exist
in any location but on the water.  Examples include, but are not
limited to, water-borne commerce; terminal and transfer facilities;
ferry terminals; watercraft sales in conjunction with other water-
dependent uses; watercraft construction, repair, and maintenance;
moorage and launching facilities; aquaculture; log booming; {+ aquatic
habitat mitigation; +} and public fishing piers and parks.
     (2) "Water-oriented use" means a use which historically has been
dependent on a waterfront location, but with existing technology could
be located away from the waterfront.  Examples include, but are not
limited to, wood products manufacturing, watercraft sales, fish
processing, petroleum refining, sand and gravel processing, log
storage, and house boats.  For the purposes of determining rent under
this chapter, water-oriented uses shall be classified as water-
dependent uses if the activity either is conducted on state-owned
aquatic lands leased on October 1, 1984, or was actually conducted on
the state-owned aquatic lands for at least three years before October
1, 1984.  If, after October 1, 1984, the activity is changed to a use
other than a water-dependent use, the activity shall be classified as
a nonwater-dependent use.  If continuation of the existing use requires
leasing additional state-owned aquatic lands and is permitted under the
shoreline management act of 1971, chapter 90.58 RCW, the department may
allow reasonable expansion of the water-oriented use.
     (3) "Nonwater-dependent use" means a use which can operate in a
location other than on the waterfront.  Examples include, but are not
limited to, hotels, condominiums, apartments, restaurants, retail
stores, and warehouses not part of a marine terminal or transferfacility.
     (4) "Log storage" means the water storage of logs in rafts or
otherwise prepared for shipment in water-borne commerce, but does not
include the temporary holding of logs to be taken directly into a
vessel or processing facility.
     (5) "Log booming" means placing logs into and taking them out of
the water, assembling and disassembling log rafts before or after their
movement in water-borne commerce, related handling and sorting
activities taking place in the water, and the temporary holding of logs
to be taken directly into a processing facility.  "Log booming" does
not include the temporary holding of logs to be taken directly into avessel.
     (6) "Department" means the department of natural resources.
     (7) "Port district" means a port district created under Title 53RCW.
     (8) The "real rate of return" means the average for the most recent
ten calendar years of the average rate of return on conventional real
property mortgages as reported by the federal home loan bank board or
any successor agency, minus the average inflation rate for the most
recent ten calendar years.
     (9) The "inflation rate" for a given year is the percentage rate of
change in the previous calendar year's all commodity producer price
index of the bureau of labor statistics of the United States department
of commerce.  If the index ceases to be published, the department shall
designate by rule a comparable substitute index.
     (10) "Public utility lines" means pipes, conduits, and similar
facilities for distribution of water, electricity, natural gas,
telephone, other electronic communication, and sewers, including sewer
outfall lines.
     (11) "Terminal" means a point of interchange between land and water
carriers, such as a pier, wharf, or group of such, equipped with
facilities for care and handling of cargo and/or passengers.
     (12) "State-owned aquatic lands" means those aquatic lands and
waterways administered by the department of natural resources or
managed under RCW 79.90.475 by a port district.  "State-owned aquatic
lands" does not include aquatic lands owned in fee by, or withdrawn for
the use of, state agencies other than the department of naturalresources.
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