Wetlands Mitigation Banking (Revised Code of Washington (RCW): Title 90 Water Rights—Environment; Chapter 90.84)

Chapter Chapter 90.8490.84 RCW RCW Chapter ListingChapter Listing | | RCW DispositionsRCW Dispositions WETLANDS MITIGATION BANKINGWETLANDS MITIGATION BANKING SectionsSections 90.84.00590.84.005 FindingsFindings——PurposePurpose——Intent.Intent. 90.84.01090.84.010 Definitions.Definitions. 90.84.02090.84.020 Wetlands or wetlands banksWetlands or wetlands banks——Authority for regulating.Authority for regulating. 90.84.03090.84.030 RulesRules——Submission of proposed rules to legislative committees.Submission of proposed rules to legislative committees. 90.84.04090.84.040 Certification of banksCertification of banks——Approval of use of credits by state and local governments.Approval of use of credits by state and local governments. 90.84.05090.84.050 Approval of use of credits by the departmentApproval of use of credits by the department——Requirements.Requirements. 90.84.06090.84.060 Interpretation of chapter and rules.Interpretation of chapter and rules. 90.84.07090.84.070 Application to public and private mitigation banks.Application to public and private mitigation banks. 90.84.00590.84.005 Findings—Purpose—Intent.Findings—Purpose—Intent. (1) The legislature finds that wetlands mitigation banks are an important tool for providing(1) The legislature finds that wetlands mitigation banks are an important tool for providing compensatory mitigation for unavoidable impacts to wetlands. The legislature further finds that thecompensatory mitigation for unavoidable impacts to wetlands. The legislature further finds that the benefits of mitigation banks include: (a) Maintenance of the ecological functioning of a watershed bybenefits of mitigation banks include: (a) Maintenance of the ecological functioning of a watershed by consolidating compensatory mitigation into a single large parcel rather than smaller individual parcels; (b)consolidating compensatory mitigation into a single large parcel rather than smaller individual parcels; (b) increased potential for the establishment and long­term management of successful mitigation by bringingincreased potential for the establishment and long­term management of successful mitigation by bringing together financial resources, planning, and scientific expertise not practicable for many project­specifictogether financial resources, planning, and scientific expertise not practicable for many project­specific mitigation proposals; (c) increased certainty over the success of mitigation and reduction of temporalmitigation proposals; (c) increased certainty over the success of mitigation and reduction of temporal losses of wetlands since mitigation banks are typically implemented and functioning in advance of projectlosses of wetlands since mitigation banks are typically implemented and functioning in advance of project impacts; (d) potential enhanced protection and preservation of the state's highest value and highestimpacts; (d) potential enhanced protection and preservation of the state's highest value and highest functioning wetlands; (e) a reduction in permit processing times and increased opportunity for more cost­functioning wetlands; (e) a reduction in permit processing times and increased opportunity for more cost­ effective compensatory mitigation for development projects; and (f) the ability to provide compensatoryeffective compensatory mitigation for development projects; and (f) the ability to provide compensatory mitigation in an efficient, predictable, and economically and environmentally responsible manner.mitigation in an efficient, predictable, and economically and environmentally responsible manner. Therefore, the legislature declares that it is the policy of the state to authorize wetland mitigation banking.Therefore, the legislature declares that it is the policy of the state to authorize wetland mitigation banking. (2) The purpose of this chapter is to support the establishment of mitigation banks by: (a)(2) The purpose of this chapter is to support the establishment of mitigation banks by: (a) Authorizing state agencies and local governments, as well as private entities, to achieve the goals of thisAuthorizing state agencies and local governments, as well as private entities, to achieve the goals of this chapter; and (b) providing a predictable, efficient, regulatory framework, including timely review ofchapter; and (b) providing a predictable, efficient, regulatory framework, including timely review of mitigation bank proposals. The legislature intends that, in the development and adoption of rules formitigation bank proposals. The legislature intends that, in the development and adoption of rules for banks, the department establish and use a collaborative process involving interested public and privatebanks, the department establish and use a collaborative process involving interested public and private entities.entities. [ [ 1998 c 248 § 1.1998 c 248 § 1.]] 90.84.01090.84.010 Definitions.Definitions. The definitions in this section apply throughout this chapter unless the context clearly requiresThe definitions in this section apply throughout this chapter unless the context clearly requires otherwise.otherwise. http://app.leg.wa.gov/RCW/default.aspx?cite=90.84 https://app.leg.wa.gov/RCW/default.aspx?cite=90.84 https://app.leg.wa.gov/RCW/dispo.aspx?cite=90.84 http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%201. (1) "Banking instrument" means the documentation of agency and bank sponsor concurrence on(1) "Banking instrument" means the documentation of agency and bank sponsor concurrence on the objectives and administration of the bank that describes in detail the physical and legalthe objectives and administration of the bank that describes in detail the physical and legal characteristics of the bank, including the service area, and how the bank will be established andcharacteristics of the bank, including the service area, and how the bank will be established and operated.operated. (2) "Bank sponsor" means any public or private entity responsible for establishing and, in most(2) "Bank sponsor" means any public or private entity responsible for establishing and, in most circumstances, operating a bank.circumstances, operating a bank. (3) "Credit" means a unit of trade representing the increase in the ecological value of the site, as(3) "Credit" means a unit of trade representing the increase in the ecological value of the site, as measured by acreage, functions, and/or values, or by some other assessment method.measured by acreage, functions, and/or values, or by some other assessment method. (4) "Department" means the department of ecology.(4) "Department" means the department of ecology. (5) "Wetlands mitigation bank" or "bank" means a site where wetlands are restored, created,(5) "Wetlands mitigation bank" or "bank" means a site where wetlands are restored, created, enhanced, or in exceptional circumstances, preserved expressly for the purpose of providingenhanced, or in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources.compensatory mitigation in advance of authorized impacts to similar resources. (6) "Mitigation" means sequentially avoiding impacts, minimizing impacts, and compensating for(6) "Mitigation" means sequentially avoiding impacts, minimizing impacts, and compensating for remaining unavoidable impacts.remaining unavoidable impacts. (7) "Practicable" means available and capable of being done after taking into consideration cost,(7) "Practicable" means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.existing technology, and logistics in light of overall project purposes. (8) "Service area" means the designated geographic area in which a bank can reasonably be(8) "Service area" means the designated geographic area in which a bank can reasonably be expected to provide appropriate compensation for unavoidable impacts to wetlands.expected to provide appropriate compensation for unavoidable impacts to wetlands. (9) "Unavoidable" means adverse impacts that remain after all appropriate and practicable(9) "Unavoidable" means adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.avoidance and minimization have been achieved. [ [ 1998 c 248 § 3.1998 c 248 § 3.]] 90.84.02090.84.020 Wetlands or wetlands banks—Authority for regulating.Wetlands or wetlands banks—Authority for regulating. This chapter does not create any new authority for regulating wetlands or wetlands banks beyondThis chapter does not create any new authority for regulating wetlands or wetlands banks beyond what is specifically provided for in this chapter. No authority is granted to the department under thiswhat is specifically provided for in this chapter. No authority is granted to the department under this chapter to adopt rules or guidance that apply to wetland projects other than banks under this chapter.chapter to adopt rules or guidance that apply to wetland projects other than banks under this chapter. [ [ 1998 c 248 § 2.1998 c 248 § 2.]] 90.84.03090.84.030 Rules—Submission of proposed rules to legislative committees.Rules—Submission of proposed rules to legislative committees. (1) Subject to the requirements of this chapter, the department, through a collaborative process,(1) Subject to the requirements of this chapter, the department, through a collaborative process, shall adopt rules for:shall adopt rules for: (a) Certification, operation, and monitoring of wetlands mitigation banks. The rules shall include(a) Certification, operation, and monitoring of wetlands mitigation banks. The rules shall include procedures to assure that:procedures to assure that: (i) Priority is given to banks providing for the restoration of degraded or former wetlands;(i) Priority is given to banks providing for the restoration of degraded or former wetlands; (ii) Banks involving the creation and enhancement of wetlands are certified only where there are(ii) Banks involving the creation and enhancement of wetlands are certified only where there are adequate assurances of success and that the bank will result in an overall environmental benefit; andadequate assurances of success and that the bank will result in an overall environmental benefit; and (iii) Banks involving the preservation of wetlands or associated uplands are certified only when(iii) Banks involving the preservation of wetlands or associated uplands are certified only when the preservation is in conjunction with the restoration, enhancement, or creation of a wetland, or in otherthe preservation is in conjunction with the restoration, enhancement, or creation of a wetland, or in other exceptional circumstances as determined by the department consistent with this chapter;exceptional circumstances as determined by the department consistent with this chapter; (b) Determination and release of credits from banks. Procedures regarding credits shall authorize(b) Determination and release of credits from banks. Procedures regarding credits shall authorize the use and sale of credits to offset adverse impacts and the phased release of credits as different levelsthe use and sale of credits to offset adverse impacts and the phased release of credits as different levels of the performance standards are met;of the performance standards are met; http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%203. http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%202. (c) Public involvement in the certification of banks, using existing statutory authority;(c) Public involvement in the certification of banks, using existing statutory authority; (d) Coordination of governmental agencies, including early notification of the local government(d) Coordination of governmental agencies, including early notification of the local government where the bank is located;where the bank is located; (e) Establishment of criteria for determining service areas for each bank in accordance with(e) Establishment of criteria for determining service areas for each bank in accordance with subsection (2) of this section;subsection (2) of this section; (f) Performance standards; and(f) Performance standards; and (g) Long­term management, financial assurances, and remediation for certified banks.(g) Long­term management, financial assurances, and remediation for certified banks. (2) The criteria for determining service areas under subsection (1)(e) of this section shall include(2) The criteria for determining service areas under subsection (1)(e) of this section shall include a requirement that restricts the maximum extent of the service area of a wetlands mitigation bank to thea requirement that restricts the maximum extent of the service area of a wetlands mitigation bank to the water resource inventory area (WRIA) as established under chapter 173­500 WAC in which the bank iswater resource inventory area (WRIA) as established under chapter 173­500 WAC in which the bank is located except where a service area may include parts of other WRIAs if it is ecologically defensible andlocated except where a service area may include parts of other WRIAs if it is ecologically defensible and appropriate.appropriate. (3) Before adopting rules under this chapter, the department shall submit the proposed rules to(3) Before adopting rules under this chapter, the department shall submit the proposed rules to the appropriate standing committees of the legislature. By January 30, 1999, the department shall submitthe appropriate standing committees of the legislature. By January 30, 1999, the department shall submit a report to the appropriate standing committees of the legislature on its progress in developing rulesa report to the appropriate standing committees of the legislature on its progress in developing rules under this chapter.under this chapter. [ [ 2008 c 80 § 1;2008 c 80 § 1; 1998 c 248 § 4.1998 c 248 § 4.]] 90.84.04090.84.040 Certification of banks—Approval of use of credits by state and local governments.Certification of banks—Approval of use of credits by state and local governments. (1) The department may certify only those banks that meet the requirements of this chapter.(1) The department may certify only those banks that meet the requirements of this chapter. Certification shall be accomplished through a banking instrument. The local jurisdiction in which the bankCertification shall be accomplished through a banking instrument. The local jurisdiction in which the bank is located shall be signatory to the banking instrument.is located shall be signatory to the banking instrument. (2) For a bank for which an application for a banking instrument was filed January 1, 2008, or(2) For a bank for which an application for a banking instrument was filed January 1, 2008, or thereafter, the department may not certify a bank without local approval of the bank. The local jurisdictionthereafter, the department may not certify a bank without local approval of the bank. The local jurisdiction in which the bank is located has final approval over the certification of the mitigation bank. If the localin which the bank is located has final approval over the certification of the mitigation bank. If the local government approves the bank, it shall be a signatory to the banking instrument.government approves the bank, it shall be a signatory to the banking instrument. (3) State agencies and local governments may approve use of credits from a bank for any(3) State agencies and local governments may approve use of credits from a bank for any mitigation required under a permit issued or approved by that state agency or local government tomitigation required under a permit issued or approved by that state agency or local government to compensate for the proposed impacts of a specific public or private project.compensate for the proposed impacts of a specific public or private project. [ [ 2008 c 80 § 2;2008 c 80 § 2; 1998 c 248 § 5.1998 c 248 § 5.]] 90.84.05090.84.050 Approval of use of credits by the department—Requirements.Approval of use of credits by the department—Requirements. Prior to authorizing use of credits from a bank as a means of mitigation under a permit issued orPrior to authorizing use of credits from a bank as a means of mitigation under a permit issued or approved by the department, the department must assure that all appropriate and practicable steps haveapproved by the department, the department must assure that all appropriate and practicable steps have been undertaken to first avoid and then minimize adverse impacts to wetlands. In determiningbeen undertaken to first avoid and then minimize adverse impacts to wetlands. In determining appropriate steps to avoid and minimize adverse impacts to wetlands, the department shall take intoappropriate steps to avoid and minimize adverse impacts to wetlands, the department shall take into consideration the functions and values of the wetland, including fish habitat, groundwater quality, andconsideration the functions and values of the wetland, including fish habitat, groundwater quality, and protection of adjacent properties. The department may approve use of credits from a bank when:protection of adjacent properties. The department may approve use of credits from a bank when: (1) The credits represent the creation, restoration, or enhancement of wetlands of like kind and in(1) The credits represent the creation, restoration, or enhancement of wetlands of like kind and in close proximity when estuarine wetlands are being mitigated;close proximity when estuarine wetlands are being mitigated; (2) There is no practicable opportunity for on­site compensation; or(2) There is no practicable opportunity for on­site compensation; or (3) Use of credits from a bank is environmentally preferable to on­site compensation.(3) Use of credits from a bank is environmentally preferable to on­site compensation. http://lawfilesext.leg.wa.gov/biennium/2007-08/Pdf/Bills/Session%20Laws/Senate/6761-S.SL.pdf?cite=2008%20c%2080%20%C2%A7%201; http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%204. http://lawfilesext.leg.wa.gov/biennium/2007-08/Pdf/Bills/Session%20Laws/Senate/6761-S.SL.pdf?cite=2008%20c%2080%20%C2%A7%202; http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%205. [ [ 1998 c 248 § 6.1998 c 248 § 6.]] 90.84.06090.84.060 Interpretation of chapter and rules.Interpretation of chapter and rules. The interpretation of this chapter and rules adopted under this chapter must be consistent withThe interpretation of this chapter and rules adopted under this chapter must be consistent with applicable federal guidance for the establishment, use, and operation of wetlands mitigation banks as itapplicable federal guidance for the establishment, use, and operation of wetlands mitigation banks as it existed on June 11, 1998, or such subsequent date as may be provided by the department by rule,existed on June 11, 1998, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this chapter.consistent with the purposes of this chapter. [ [ 1998 c 248 § 7.1998 c 248 § 7.]] 90.84.07090.84.070 Application to public and private mitigation banks.Application to public and private mitigation banks. This chapter applies to public and private mitigation banks.This chapter applies to public and private mitigation banks. [ [ 1998 c 248 § 8.1998 c 248 § 8.]] http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%206. http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%207. http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/House/2339-S2.SL.pdf?cite=1998%20c%20248%20%C2%A7%208.