S-0935.1           _______________________________________________
                                  SENATE BILL 5737
                   _______________________________________________
State of Washington               56th Legislature             1999 Regular Session
By Senator JacobsenRead first time 02/05/1999.  Referred to Committee on Natural
Resources, Parks & Recreation.
     AN ACT Relating to fish passage barriers; amending RCW 75.20.040,
75.20.060, 75.20.061, 77.12.425, and 75.46.030; and adding new sections
to chapter 75.46 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     {+ NEW SECTION. +}  Sec. 1.  A new section is added to chapter
75.46 RCW to read as follows:
     (1) The interagency review team established under RCW 75.46.080
shall maintain a comprehensive inventory of barriers to fish passage.
The inventory shall be compiled from existing and ongoing inventories
being conducted by the state department of transportation, local
governments, and facility owners.  The team shall place the highest
priority upon building the inventory for those geographic areas of the
state with salmon stocks listed under the federal endangered species
act, and for which fish passage barriers are identified as a factor
limiting stock recovery.  The team shall seek recommendations from the
independent science panel created under RCW 75.46.050 on criteria and
methods for identifying high priority salmon stocks and high priority
passage barrier facilities to assist with compiling and maintaining the
inventory under this subsection and the listing under subsection (2) of
this section.
     (2) Not later than June 30, 2001, the team shall identify from the
inventory those passage barriers that pose the greatest limitations
upon the recovery of salmon stocks listed on the federal endangered
species act, considering stocks state-wide and the relative impact of
these facilities on recovery and other limiting factors.  Before adding
a facility to the list, the team shall notify the facility owner of the
proposed addition.  The team shall not add a facility for which the
owner demonstrates to the team that construction to modify the facility
to eliminate the passage barrier will be commenced by July 1, 2003.
The list shall include not fewer than one hundred facilities posing
passage barriers.
     (3) Upon finalizing the list required in subsection (2) of this
section, the team shall notify the owners of the listed facilities and
work with them to develop reasonable plans and compliance schedules for
modifying the facility to eliminate the passage barrier.  The plans
shall include a design and construction component, a plan for
maintenance of the facility to prevent it becoming a barrier to fish
passage in the future, and a monitoring component to assess the
performance of the fish passage facility.  The compliance schedule
shall establish a goal of early action to eliminate the barrier,
consistent with state recovery plans and consistent with applicable
habitat work schedules for the watershed in which the facility islocated.
     {+ NEW SECTION. +}  Sec. 2.  A new section is added to chapter
75.46 RCW to read as follows:
     Until June 30, 2003, any state agency considering the award of
grants or loans for a project to eliminate fish passage barriers shall
accord a preference for applications addressing facilities listed under
section 1 of this act and for which the applicant has adopted a plan
and compliance schedule approved by the interagency review team.
     Sec. 3.  RCW 75.20.040 and 1998 c 190 s 85 are each amended to read
as follows:
     A diversion device used for conducting water from a lake, river, or
stream for any purpose shall be equipped with a fish guard approved by
the director to prevent the passage of fish into the diversion device.
The fish guard shall be maintained at all times when water is taken
into the diversion device.  The fish guards shall be installed at
places and times prescribed by the director upon thirty days' notice to
the owner of the diversion device.
     Each day the diversion device is not equipped with an approved fish
guard is a separate offense.  If within thirty days after notice to
equip a diversion device the owner fails to do so, the director may
take possession of the diversion device and close the device until it
is properly equipped.  Expenses incurred by the department constitute
the value of a lien upon the diversion device and upon the real and
personal property of the owner.  Notice of the lien shall be filed and
recorded in the office of the county auditor of the county in which the
action is taken.
     {+ Until June 30, 2003, the director shall not take action under
this section where the director determines that the owner is in
compliance with a plan and compliance schedule approved by the
interagency review team under section 1 of this act. +}
     Sec. 4.  RCW 75.20.060 and 1998 c 190 s 86 are each amended to read
as follows:
     {+ (1) +} A dam or other obstruction across or in a stream shall be
provided with a durable and efficient fishway approved by the director.
Plans and specifications shall be provided to the department prior to
the director's approval.  The fishway shall be maintained in an
effective condition and continuously supplied with sufficient water to
freely pass fish.
     {+ (2) +} If a person fails to construct and maintain a fishway or
to remove the dam or obstruction in a manner satisfactory to the
director, then within thirty days after written notice to comply has
been served upon the owner, his agent, or the person in charge, the
director may construct a fishway or remove the dam or obstruction.
Expenses incurred by the department constitute the value of a lien upon
the dam and upon the personal property of the person owning the dam.
Notice of the lien shall be filed and recorded in the office of the
county auditor of the county in which the dam or obstruction is
situated.  The lien may be foreclosed in an action brought in the name
of the state.     {+ (3) +} If, within thirty days after notice to construct a
fishway or remove a dam or obstruction, the owner, his agent, or the
person in charge fails to do so, the dam or obstruction is a public
nuisance and the director may take possession of the dam or obstruction
and destroy it.  No liability shall attach for the destruction.
     {+ (4) Until June 30, 2003, the director shall not take action
under subsections (2) and (3) of this section where the director
determines that the owner is in compliance with a plan and compliance
schedule approved by the interagency review team under section 1 ofthis act. +}
     Sec. 5.  RCW 75.20.061 and 1983 1st ex.s. c 46 s 73 are each
amended to read as follows:
     {+ (1) +} If the director determines that a fishway or fish guard
described in RCW 75.20.040 and 75.20.060 and in existence on September
1, 1963, is inadequate, in addition to other authority granted in this
chapter, the director may remove, relocate, reconstruct, or modify the
device, without cost to the owner.  The director shall not materially
modify the amount of flow of water through the device.  After the
department has completed the improvements, the fishways and fish guards
shall be operated and maintained at the expense of the owner in
accordance with RCW 75.20.040 and 75.20.060.
     {+ (2) Until June 30, 2003, the director shall not take action
under this section where the director determines that the owner is in
compliance with a plan and compliance schedule approved by the
interagency review team under section 1 of this act. +}
     Sec. 6.  RCW 77.12.425 and 1980 c 78 s 90 are each amended to read
as follows:     {+ (1) +} The director may authorize removal, relocation,
reconstruction, or other modification of an inadequate fishway or fish
protective device required by RCW 77.16.210 and 77.16.220 which device
was in existence on September 1, 1963, without cost to the owner for
materials and labor.  The modification may not materially alter the
amount of water flowing through the fishway or fish protective device.
Following modification, the fishway or fish protective device shall be
maintained at the expense of the person or governmental agency owning
the obstruction or water diversion device.
     {+ (2) Until June 30, 2003, the director shall not take action
under this section where the director determines that the owner is in
compliance with a plan and compliance schedule approved by the
interagency review team under section 1 of this act. +}
     Sec. 7.  RCW 75.46.030 and 1998 c 246 s 4 are each amended to read
as follows:     Beginning in December 2000, the governor shall submit a biennial
state of the salmon report to the legislature during the first week of
December.  The report may include the following:
     (1) A description of the amount of in-kind and financial
contributions, including volunteer, private, and state, federal, tribal
as available, and local government money directly spent on salmon
recovery in response to actual, proposed, or expected endangered
species act listings;
     (2) A summary of habitat projects including but not limited to:
     (a) A summary of accomplishments in removing barriers to salmon
passage and an identification of existing barriers;
     (b) A summary of salmon restoration efforts undertaken in the past
two years;     (c) A summary of the role which private volunteer initiatives
contribute in salmon habitat restoration efforts; and
     (d) A summary of efforts taken to protect salmon habitat;
     (3) A summary of collaborative efforts undertaken with adjoining
states or Canada;
     (4) A summary of harvest and hatchery management activities
affecting salmon recovery;
     (5) A summary of information regarding impediments to successful
salmon recovery efforts;
     (6) A summary of the number and types of violations of existing
laws pertaining to:  (a) Water quality; (({- and -})) (b) {+ passage
barriers; and (c) +} salmon.  The summary shall include information
about the types of sanctions imposed for these violations;
     (7) Information on the estimated carrying capacity of new habitat
created pursuant to chapter 246, Laws of 1998; (({- and -}))
     (8) {+ A summary of actions to eliminate passage barriers,
including the inventory, priority list, and project plans and
compliance schedules under section 1 of this act; and
     (9) +} Recommendations to the legislature that would further the
success of salmon recovery.  The recommendations may include:
     (a) The need to expand or improve nonregulatory programs andactivities; and
     (b) The need to expand or improve state and local laws andregulations.
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