HABITAT HOTLINE


SPECIAL ISSUE

SEPTEMBER 1995 NUMBER 21


TABLE OF CONTENTS

I.  ALASKA 



II.  CALIFORNIA 



III.  IDAHO 



IV.  OREGON 



V.  WASHINGTON 



VI.  SOURCES 

1995 STATE LAWS AFFECTING FISH HABITAT

IN ALASKA, CALIFORNIA, IDAHO,

OREGON AND WASHINGTON

NOTE: This issue of the Habitat Hotline outlines state laws passed in the 1995 state legislatures of Idaho, Oregon, Washington, and Alaska that affect fish habitat. Many of the laws reviewed here include those activities affecting water quality and quantity. Examples of the legislation reviewed below include bills affecting timber, grazing, mining, water diversions (water law), and hydroelectric projects. New laws that affect administrative procedures, private property and endangered species protection are also summarized.

In California, the legislature did not pass any significant habitat legislation. Therefore, several bills which may be under consideration next year are summarized.

If there are bills that are omitted that you feel our readers would benefit from, please contact us. Sources of the information used to compile this document can be found on page 19.

I. ALASKA

PREFACE: The Alaska legislature met January 16 through May 16, 1995. The next session begins January 8, 1996.

For Further Information Contact: The Alaska Legislative Information Office at (907) 465-4648.

BILLS PASSED

BILL: HB 121

SUBJECT: Salvage Timber Sales

SUMMARY: HB 121 authorizes certain negotiated sales of timber in an area where there will exist within two years, a high level of unemployment, underutilized timber manufacturing capacity, timber that will lose substantial economic value due to insects, disease, or fire, or timber to be cleared for conversion of land to nonforest uses.

BILL: HB 128

SUBJECT: Waste Disposal

SUMMARY: HB 128 shifts, from the Alaska Department of Environmental Conservation to the Alaska Oil and Gas Conservation Commission, responsibility for regulation of disposal of drilling mud, cuttings, and nonhazardous drilling operation wastes if that disposal occurs in the annular space of an oil or gas well or in the annular space of a water well associated with oil or gas exploration and production. Excepts the following from the requirement that a waste disposal permit be obtained from the Department of Environmental Conservation: a series of enumerated activities if the activity produces a discharge that is not a point source discharge; certain bilge pumping activities; and cooling water discharges into surface water from a boat or vessel.

BILL: SB 147

SUBJECT: Tax Credit For Habitat Protection

SUMMARY: SB 147 deletes a requirement that a municipal river habitat protection tax credit be granted only for an improvement that has been certified by the Department of Fish and Game. Requires approval of an ordinance granting tax credit by the Commissioner of Fish and Game.

BILL: HB 20

SUBJECT: Conveyance Of Tidelands To Municipalities

SUMMARY: HB 20 requires the Commissioner of Natural Resources to convey tide or submerged land to a municipality if certain conditions are met, unless the commissioner finds that the public interest in retaining state ownership clearly outweighs the municipality's interest in obtaining the land. Permits a municipality to lease land conveyed, but not to sell it. Provides that land conveyed is subject to the public trust doctrine.

OTHER INTERIM BILLS

NOTE: Below are some bills of interest that the legislature will reportedly work on in the interim. These bills could be reintroduced in the next legislative session slated to begin January 8, 1996.

BILL: HB 261

SUBJECT: Management And Sale Of State Timber & Materials

SUMMARY: HB 261 states that "[T]he prime object of a management plan shall be the highest and best use of the forest by timber production under the principles of sustained yield. The management plan must consider and allow the uses described in (g) of this section [commercial timber harvest, personal forest products harvest, fish and wildlife habitat, other nontimber uses such a mining, fish and wildlife, agriculture, grazing, soil productivity, water quality, and watershed management] so long as the uses do not interfere with the highest and best use of the forest, which is timber production [emphasis added]. If the commissioner finds by clear and convincing evidence that an allowed use under (g) of this section is incompatible with one or more other uses in a portion of a state forest, the commissioner shall affirmatively state in the management plan that finding of incompatibility is anticipated to exist together with the reasons for each finding.

BILL: HB 212

SUBJECT: Management Of State Timber

SUMMARY: HB 212 states that "If the commissioner finds that a permitted use is incompatible with one or more other uses in a portion of a state forest [emphasis added], the commissioner shall affirmatively state in the management plan that finding of incompatibility for the specific area where the incompatibility is anticipated to exist and the time period when the incompatibility is anticipated to exist together with the reasons and benefits for each finding. Commercial timber harvest may not be found to be an incompatible use or otherwise restricted unless the commissioner provides scientific data that clearly justifies the finding of incompatibility or restriction and demonstrated the benefits of the restriction." [emphasis added]

BILL: HB 154

SUBJECT: Guidelines Regarding State And Municipal Takings Of Private Property

SUMMARY: HB 154 states that "The Department Of Law shall develop and submit to the lieutenant governor each year for publication in the Alaska Administrative Code to assist state agencies, municipalities, and the public to identify and evaluate governmental action that may result in a taking of private real or personal property. The guidelines must be based on current law as articulated by the United States Supreme Court and the state supreme court and the principles stated in AS 34.50.110. The guidelines may not be construed to enlarge or reduce the scope of private property protection provided by the state or federal constitution."

Some specifics of the bill include:

Compensation: "A governmental entity may not take governmental action that results in a taking of private property, unless the governmental entity pays full compensation for the taking to the owner of the private property." [emphasis added]

Taking Defined: (A) A regulation or other governmental action that regulates or imposes a restraint on private property use for public benefit, including restraints on wetlands fish or wildlife habitat or the creation of buffer zones unless the regulation is necessary to avoid or correct a public nuisance [emphasis added], (B) governmental action that results in a physical invasion or occupancy of private property or that denies an owner any or all economic or other use of the person's private property; or (C) governmental action that results in less than a complete deprivation of all use or value of private property, or of all interest in the property, even if the action is only temporary in nature.

II. CALIFORNIA

PREFACE: The California legislature started January 3 and ended September 15, 1995. The 1996 session will begin January 3.

No significant legislation affecting fish habitat was passed in the 1995 session. However, several bills have been introduced which, if passed, would impact fish habitat. However, many of these failed bills may be brought before the legislature again in the 1996 session, and are summarized below.

For Further Information On The California Legislature Call: The State Information Operator at (916) 322-9900.

BILL: SB 649

SUBJECT: Fish And Wildlife: Water Pollution And Civil Penalties

SUMMARY: Some elements of S. 649:

  1. Placing oil and chemical wastes and materials deleterious to fish and wildlife in waters of the state is not a crime unless the person committed the act in a knowing or negligent manner and the discharge causes significant harm.
  1. Discharges or releases whether deleterious or not to fish and wildlife would be exempt from both criminal and civil prosecution if the discharger complies with a permit or authorization granted or issued by the State Water Resources Control Board, a regional water board or a publicly owned treatment works.
  1. Defines "significant harm" as "a high probability that the substance or material would enter the waters of the state. Significant harm is irrebuttably presumed to have been caused if the substance or material has entered the waters of the state or storm drain that discharges into the waters of the state. If the substance or material is cleaned up before it enters the waters of the state or a storm drain that discharges into the waters of the state, no significant harm is caused, notwithstanding the discharger's intent."
  1. Increases the burden on the state to obtain temporary restraining or preliminary injunctions to prevent harm to the public health and the environment.

BILL: AB 1285

SUBJECT: State Coastal Conservancy: Land Purchase Options

SUMMARY: Existing law authorizes the State Coastal Conservancy to enter into an option to purchase designated lands located in the coastal zone if the total cost of the option does not exceed $100,000, if the Legislature appropriates funds for purposes relating to the acquisition, management, and protection of coastal lands. AB 1285 would increase to $200,000 the total cost of the land purchase option that the conservancy is authorized to enter into.

BILL: AB 450

SUBJECT: Regarding Pollution And Creosote

SUMMARY: Existing law makes it a misdemeanor to deposit in, permit to pass into, or place where it can pass into, the waters of this state, among other things, any substance or material deleterious to fish, plant life, or bird life. Existing law requires the Department of Fish and Game to report a continuing and chronic condition of pollution to the appropriate regional water quality control board and to cooperate with the board in obtaining correction or abatement of the condition.

This bill would authorize a person to retain and maintain certain structures treated with creosote that are in whole or in-part in contact with the waters of the state if the structure was in existence on January 1, 1996, under specified conditions.

BILL: AB 563

SUBJECT: Water Quality -- Water Discharge

SUMMARY: AB 563 excludes a local public entity from liability for costs or damages which result from release of hazardous materials on property in which a perfected right-of-way is located, unless the release was caused by acts of omission, exacerbation, or impeding cleanup or abatement by that public entity.

Existing law, the Porter-Cologne Water Quality Control Act, regulates discharges of waste to the waters of the State, other than to community sewage systems. Any person who discharges or proposes to discharge waste that could affect the quality of the waters of the State must file a report with the appropriate regional water quality control board. The regional board prescribes waste discharge requirements consistent with the State's water quality objectives. Any entity, who discharges waste in violation of a waste discharge requirements, and that creates a condition of pollution or nuisance, must clean up the waste or abate the effects of the discharge. The costs of cleanup must be borne by the persons responsible.

This bill is sponsored by the City of Bakersfield. Its express purpose is to immunize local governments from liability under the Act. This exemption would be established solely on the basis of an easement or right-of-way interest in the property. As part of a railroad overpass construction project in northern Bakersfield, the City sought to acquire a right-of-way easement through eminent domain. The land in question had been contaminated with hazardous substances, potentially subjecting the City to liability for cleanup costs under the Act if the City acquired any legal interest in the land.

Although this bill would provide limited immunity to local governments from liability solely on the basis of an easement or right-of-way interest in a contaminated site, it does not relieve local governments from liability associated with their own negligent acts.

BILL: AB 137

SUBJECT: Endangered and Threatened Species

SUMMARY: Some elements of AB 137:

  1. Removes the authority of the California Fish and Game Commission (FGC) to list a species and instead places the authority with the Legislature.
  2. Specifies that after January 1, 1996, species can only be listed by statute enacted by the Legislature.
  3. Deletes the FGC's authority to adopt emergency regulations for purposes of listing a species.
  4. Specifies that no environmental impact report (EIR) is required for delisting actions under the California Environmental Quality Act (CEQA), unless an EIR was prepared when the species initially was listed.
  5. Requires "just compensation" to be paid to landowners whose fair market property values decline by 20% or more due to listing or other endangered species actions.

BILL: SB 1120

SUBJECT: Endangered Species: Incidental and Inadvertent Taking

SUMMARY: SB 1120 would prohibit penalizing the accidental take of candidate species resulting from inadvertent or ordinary, negligent acts that occur in the course of otherwise lawful activities . The bill would require any known take of those species to be reported to the department as soon as practicable and require all remains of the species be taken to the department upon request. Because a violation of the reporting and surrender provisions would be a crime under other provisions of existing law, the bill would impose a state-mandated local program by creating a new crime. The bill would also authorize the department to authorize, consistent with the act, the take of threatened species or endangered species incidental to otherwise lawful activities. The bill would also declare legislative findings regarding ongoing, routine activities relating to their impacts on candidate, threatened, or endangered species.

BILL: AB 938

SUBJECT: Timber Harvest and Coho Salmon

SUMMARY: This bill would repeal an obsolete provision regarding maintenance activities regulations and would require the board to adopt regulations, governing the conduct of timber operation for the protection of watercourse and lake protection zones that are adjacent to class I fish-bearing streams supporting major runs of coho salmon and for the purpose of preventing violations of the federal Endangered Species Act, as specified. Because a willful violation of regulations adopted pursuant to the act is a misdemeanor, the bill would impose a state-mandated local program by creating new crimes.

These provisions would become operative on or before the effective date that the Department of Commerce lists state stocks of coho salmon as either threatened or endangered under the federal Endangered Species Act.

III. IDAHO

PREFACE: The Idaho legislature began on January 9, and adjourned on March 17, 1995. Most of the legislation summarized below became effective on July 1, 1995. The next session will begin January 8, 1996.

For Further Information Contact: The Idaho Legislative Services Office at (208) 334-2475.

BILLS PASSED

BILL: Senate Concurrent Resolution No. 109

SUBJECT: A concurrent resolution approving an application to appropriate water for minimum streamflow in the Middle Fork Clearwater River.

SUMMARY: This resolution approves an Idaho Department of Water Resources' Recommended Order authorizing the appropriation of a minimum streamflow in the Middle Fork Clearwater River.

BILL: Senate Concurrent Resolution No. 110

SUBJECT: A Concurrent Resolution Approving An ApplicationTo Appropriate Water For Minimum Streamflow In The Selway River.

SUMMARY: This resolution approves an Idaho Department of Water Resources' Recommended Order authorizing the appropriation of a minimum streamflow in the Selway River.

BILL: Senate Concurrent Resolution No. 107

SUBJECT: A Concurrent Resolution Approving An Application To Appropriate Water For Minimum Streamflow In The Lochsa River.

SUMMARY: This resolution approves an Idaho Department of Water Resources' Recommended Order authorizing the appropriation of a minimum streamflow in the Lochsa River.

BILL: SB 1142

SUBJECT: Environmental Audits

SUMMARY: Amends and adds to existing law to provide that environmental audits submitted to environmental agencies are exempt from disclosure with certain exceptions.

The purpose of SB 1142 is to "encourage owners and operators of facilities and other persons conducting activities regulated under applicable environmental laws to conduct voluntary internal environmental audits of their activities, operations, compliance programs and management systems and to assess and improve compliance with applicable environmental laws while protecting confidentiality of communications relating to voluntary internal environmental audits..."

SB 1142 also recognizes that "voluntary disclosure of information developed during an environmental audit to regulatory agencies should be encouraged and that the development of an environmental program to correct environmental problems and to achieve compliance with regulations should also be encouraged. To that end the legislature is establishing immunities for violations of laws and rules voluntarily disclosed to environmental agencies. [emphasis added]

BILL: HB 197

SUBJECT: Forest Practices

SUMMARY: HB 197 amends and adds to existing law to provide that the Department of Lands shall not grant a forest practices notification to any operator who has an outstanding forest practices violation.

BILL: SB 1009

SUBJECT: Creates Constitutional Defense Council

SUMMARY: SB 1009 creates a "constitutional defense council which shall consist of the governor, the president pro tempore of the senate, the speaker of the house of representatives and the attorney general."

The purpose of the council includes "restoring, maintaining and advancing the sovereignty and authority over issues that affect this state and the well-being of its citizens."

The council "may examine and challenge by legal action, legislation or any other legal means: (a) Federal mandates, (b) Court rulings, (c) The authority granted to, or assumed by, the federal government, (d) Laws, regulations and practices of the federal government, (e) Any other activity that is deemed appropriate by the council."

BILL: SB 1284

SUBJECT: Water Quality Regulation

SUMMARY: S.B. 1284 addresses waterways protection under the federal Clean Water Act, by establishing a program to enable the state to respond to court mandates concerning protection of water quality of 962 lakes and streams.

Some elements of SB 1284:

General Water Quality Standard And Antidegradation Policy: The existing instream beneficial uses of each water body and the level of water quality necessary to protect those uses shall be maintained and protected. Where the quality of waters exceeds levels necessary to support propagation of fish, shellfish and wildlife and recreation in and on the water, that quality shall be maintained unless the department [of Health and Welfare] finds, after full satisfaction of the intergovernmental coordination and public participation provisions of this chapter, and the department's planning processes, along with appropriate planning processes of other agencies, that lowering water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such reductions in water quality, the department shall [emphasis added] assure water quality adequate to protect existing uses fully.

Designation Of Instream Beneficial Uses: "For each surface water body, the director [of the Department of Health and Welfare] shall designate, and specifically list in the rules of the department, the beneficial use which that water body can reasonably be expected to support without regard to whether that use is fully supported at the time of such designation. In making such designations, the director shall consider the existing use of the water body and such physical, geological, chemical and biological measures as may affect the water body and shall make such designations utilizing fully the public participation provisions set forth in this chapter. Designated uses as set forth in this chapter shall fully support existing uses and shall supersede existing uses. Designations of beneficial uses shall be reviewed as necessary and revised when such physical, chemical or biological measures indicate the need to do so. In revising a designated beneficial use, the director shall consider the economic impact of the revision and the economic costs required to fully support the revised designated beneficial use. There shall be no requirement [emphasis added] for persons who either conduct nonpoint activities or who conduct operations on waters described in section 39-3609, Idaho Code, pursuant to a national pollution discharge elimination system permit, to meet water quality criteria other than those necessary for the full support of the existing beneficial use for the water body pertinent to either the nonpoint activity or point source permit in question, [emphasis added] except as provided in section 39-3611, Idaho Code."

Identification Of Reference Streams Or Water Bodies: "The director shall, in a manner consistent with the public participation provisions set forth in this chapter and in accordance with chapter 52, title 67, Idaho Code, identify reference streams, water bodies or conditions to assist in determining when designated beneficial uses are being fully supported. Streams, water bodies or conditions shall be selected to represent the land types, land uses and geophysical features of the basins described in this chapter. Such reference streams or conditions shall be representative of each of the following:

  1. A stream or other water body reflecting natural conditions with few impacts from human activities and which is representative of the highest level of support attainable in the basin.
  2. A stream or water body reflecting the minimum conditions necessary to fully support the designated beneficial uses."

Use Of Reference Streams Or Water Bodies To Determine Full Support Of Beneficial Uses: "The director, in consultation with the basin advisory group, [emphasis added] shall conduct monitoring to determine if designated beneficial uses are fully supported. In making such determination, the director shall compare the physical, chemical and biological measures of the water body in question with the reference stream or condition appropriate to the land type, land uses and geophysical features of the water body in question as described in section 39-3605(2), Idaho Code. If the water body in question has such physical, chemical or biological measures as the reference water body or condition, even though such measures may be diminished from the conditions set forth in section 39-3605(1), Idaho Code, then the director shall deem the designated beneficial uses for the water in question to be fully supported and as having achieved the objectives of the federal Clean Water Act and of this chapter. When site-specific standards have been developed for an activity pursuant to the rules of the department, the use of reference streams as described in this section shall not be necessary."

Regulatory Actions For Water Bodies Where Beneficial Uses Are Fully Supported: "For streams or other water bodies where the director has determined that designated beneficial uses are being fully supported, the director shall assure, in a manner consistent with other existing applicable statutes, and rules, that all programs deemed necessary to maintain full support of designated beneficial uses are employed. In providing such assurances, the director may enter together into an agreement with public agencies in accordance with sections 67-2326 through 67-2333, Idaho Code."

Regulatory Actions For Water Bodies Where Beneficial Uses Are Not Fully Supported: "In accordance with the provisions set forth in the federal clean water act and the public participation provisions set forth in this chapter, the director shall notify the appropriate public agencies of any water bodies in which the designated beneficial uses are not fully supported. For water bodies so identified, the director shall place such water bodies into one (1) of the following priority classifications for the development of total maximum daily load or equivalent processes:

  1. 'High,' wherein definitive and generally accepted water quality data indicate that unless remedial actions are taken in the near term there will be significant risk to designated or existing beneficial uses of a particular water body. The director in establishing this category, shall consider public involvement as set forth in this chapter.
  2. 'Medium,' wherein water quality data indicate that unless remedial actions are taken there will be risks to designated or existing beneficial uses.
  3. 'Low,' wherein limited or subjective water quality data indicate designated uses are not fully supported, but that risks to human health, aquatic life, or the recreational, economic or aesthetic importance of a particular water body are minimal."

Basin Advisory Groups: "The director, in consultation with the designated agencies, shall name, for each of the state's major river basins, no less than one (1) basin advisory group which shall generally advise the director on water quality objectives for each basin and work in a cooperative manner with the director to achieve these objectives."

"The membership of each basin advisory group shall be representative of the industries and interests directly affected by the implementation of water quality programs within the basin and each member of the group shall either reside within the basin or represent persons with a real property interest within the basin. [emphasis added] Recognized groups representing those industries or interests in the basin may nominate members of the group to the director. Each basin advisory group named by the director shall reflect a balanced representation of the interests in the basin and shall, where appropriate, include a representative from each of the following: agriculture, mining, nonmunicipal point source discharge permittees, forest products, local government, livestock, Indian tribes (for areas within reservation boundaries), water-based recreation, and environmental interests. In addition, the director shall name one (1) person to represent the public at large who may reside outside the basin. Duties of the basin advisory groups shall include, but not be limited to, providing advice to the director for:

  1. Determining priorities for monitoring;
  2. Revisions in the beneficial uses designated for each stream and the status and attainability of designated or existing beneficial uses for the water bodies within the basin;
  3. Assigning water bodies to the categories described in section;
  4. Reviewing the development and implementation of total maximum daily load processes as described in section 39-3611, Idaho Code;
  5. Suggesting members of the watershed advisory groups described in section 39-3615, Idaho Code; and
  6. Establishing priorities for water quality programs within the basin based on the economic resources available to implement such programs."

Watershed Advisory Groups: "The director, with the advice of the appropriate basin advisory group, may name watershed advisory groups which will generally advise the department on those specific actions needed to control point and nonpoint sources of pollution within the watersheds of those water bodies where designated beneficial uses are not fully supported."

Designation Of Outstanding Resource Waters: "Any person may request, in writing to the board of health and welfare [board], that a stream segment may be considered for designation as an outstanding resource water. The board shall recommend to the legislature those stream segments the board proposes for designation as outstanding resource waters. The legislature shall determine by law which such stream segments to designate as outstanding resource waters."

Restrictions For New Nonpoint Source Activities On Outstanding Resource Waters: "No person shall conduct a new or substantially modify an existing nonpoint source activity that can reasonably be expected to lower the water quality of an outstanding resource water, except for short-term or temporary nonpoint source activities which do not alter the essential character or special uses of a segment, issuance of water rights permits or licenses, allocation of water rights, or operation of water diversions or impoundments."

Continuation For Existing Activities On Outstanding Resource Waters: "Existing activities may continue and shall be conducted in a manner that maintains and protects the current water quality of an outstanding resource water. The provisions of this section shall not affect short-term or temporary activities that do not alter the essential character or special uses of a segment, allocation of water rights, or operations of water diversions or impoundments, provided that such activities shall be conducted in conformance with applicable laws and regulations."

Approval Provisions For Best Management Practices For New Nonpoint Source Activities On Or Affecting Outstanding Resource Waters: "No person may conduct a new nonpoint source activity on or affecting an outstanding resource water, except for a short-term or temporary activity as set forth in section 39-3602, Idaho Code, prior to approval by the designated agency as provided in this section."

Continuation Provisions For Existing Activities On Outstanding Resource Waters: "Existing activities may continue and shall be conducted in a manner that maintains and protects the current water quality of an outstanding resource water.

Approval Provisions For Best Management Practices For New Nonpoint Source Activities On Or Affecting Outstanding Resource Waters: "Within six (6) months of designation of an outstanding resource water by the legislature, the designated agency shall develop best management practices for reasonably foreseeable nonpoint source activities.

Forest Practices Advisory Committee: SB 1284 sets up a forest practices advisory committee made up primarily of persons "qualified by experience and/or training to provide technical advice related to forest practices." A minimum of 4 of the 8 seats are to be reserved for timber owner/operators. There is a seat for one fishery biologist.

SB 1284 also says that if a timber harvest activity is planned along a stream segment of concern, that site specific BMPs, which the department has determined are necessary to protect water quality in the affected stream segment of concern, the department shall not accept the notification until temporary rules have been enacted establishing the site-specific BMPs." [emphasis added]

IV. OREGON

PREFACE: The Oregon Legislature began January 9 and ended June 10. A special session was held July 28 through August 4. The next session will begin January 13, 1997.

For Further Information Call: (503) 986-1180.

BILLS PASSED

BILL: SB 1006

SUBJECT: Savage Rapids Dam Study (Rogue River)

SUMMARY: In 1987, the Grants Pass Irrigation District applied for an additional permit to increase its allowable water diversion. During the Department's consideration of the permit request, concerns were raised about the district's water management practices and about fish passage problems at Savage Rapids Dam. Based on these concerns, the district agreed to complete a water management study to document the need for the additional quantity of water and to address the fish passage problems at Savage Rapids Dam. On October 28, 1994, the Water Resources Commission approved extension of the district's permit and also approved a fish passage plan proposed by the district which includes the removal of the Savage Rapids Dam. Although the district board concurred with the permit provisions, many local citizens voiced opposition to the removal of the dam.

SB 1006 establishes the Savage Rapids Dam Strategic Task Force to develop a finite set of alternatives to provide for fish passage and water resource management at the Savage Rapids Dam. The alternatives would be based on the participant's perspectives and consideration of nine factors listed in the bill, including Rogue River salmon and steelhead trout fisheries, economic considerations, impacts on upstream and downstream residents, and the costs of implementing alternatives.

The task force will be appointed by the Governor, President of the Senate and Speaker of the House and would consist of 18 members, including individuals representing areas upstream and downstream of the dam; cities; counties other governmental entities; and agricultural, business, recreational and other interests. The task force will make an interim report to the Governor and appropriate legislative interim committee on or before February 1, 1996, and a final report on or before June 30, 1996.

BILL: HB 2184

SUBJECT: Water Transfer

SUMMARY: HB 2184 allows "water use subject to transfer." Allows transfer of point of diversion from surface to groundwater if sources are hydraulically connected. Allows temporary transfers. Allows additional uses for which a limited license may be issued. Exempts certain livestock watering and forest management operations from the requirement to obtain a water right to use surface water.

BILL: SB 502

SUBJECT: Abolishes the Strategic Watershed Management Group and transfers it to the Oregon Department of Environmental Quality.

SUMMARY: The Strategic Water Management Group was first established in 1983 to coordinate state agency activities related to water resources. The Group consists of the Governor and 13 state agency representatives. SB 502 abolishes the Strategic Water Management Group and transfer its functions related to groundwater to the Department of Environmental Quality.

BILL: SB 494

SUBJECT: Water Transfers

SUMMARY: SB 494 establishes a new process for the permanent transfer of the place of use of water within districts. The process authorizes a district to submit a single petition to the Oregon Department of Water Resources (Department) requesting the approval of one or more transfers so long as the transfers do not result in the rate, duty and total acreage to which water is applied being exceeded; do not injure other water rights; the use remains the same; and no water is applied to lands from which the water is transferred. A district may submit a petition to the Department either before or after the change in place of use, but no later than the end of the calendar year in which the change took place. A single petition may include an unlimited number of transfers. A water right or the portion of a water right transferred under this provision may not be transferred again under this provision within five years. The bill establishes information requirements for petitions and a requirement for notice to the Department if the change begins before the district files a petition. The Department must publish notice of the proposed transfer(s) in its weekly mailing.

SB 494 would also amend the existing alternate acreage law that allows a temporary change in the place of use of water within a district. The amendments authorize temporary transfers for a period not to exceed five years and require the district to notify the Department of the change at least 60 days before the beginning of irrigation deliveries for the season, or March 1, whichever is earlier.

BILL: SB 516

SUBJECT: Water Use Permits

SUMMARY: SB 516 allows the holder of a water use permit to change the point of diversion or appropriation or place of use if the following conditions are met: (1) the change will not result in injury to an existing water right; (2) for a proposed change in the place of use, the land on which the water is used is owned or controlled by a permit holder and is contiguous to the land to which the permit is appurtenant; (3) all other terms and conditions of the permit remain the same, including the beneficial use and the number of acres to which the water is applied; (4) prior approval is obtained from a district if the water is to be transported or conveyed by a district; (5) the permit holder provides notice to the Department at least 60 days before making the change; (6) the permit holder complies with the notice requirements in ORS 540.520 (3), if applicable; and (7) the diversion is provided with a proper fish screen, if requested by the Department of Fish and Wildlife.

BILL: SB 674

SUBJECT: Revises Water Right Application Process

SUMMARY: There is currently a backlog of approximately 5,000 instream and out-of-stream water right applications in the Oregon Water Resources Department. The backlog is the result of the increasingly complex nature of reviewing water right requests and a large number of new applicants.

SB 674 establishes an expedited water rights application process for surface water, groundwater, reservoir and instream water requests. Some significant features of the bill include:

BILL: SB 1032

SUBJECT: Instream Water Rights Relying On Stored Water

SUMMARY: The 1987 Instream Water Rights Act requires the Water Resources Commission to convert existing minimum streamflows in the Willamette Basin that rely on water stored in federal projects. During discussions held in conjunction with contested case proceedings initiated to address issues related to minimum flow conversions, the Department suggested conditioning future regulation for instream water rights on an agreement with the reservoir owner for the release of water.

The Department currently requires that all applicants for new instream and out-of-stream water rights relying on stored water either own the reservoir or have a contract for stored water from the reservoir.

SB 1032 requires that any new request for an instream water right that relies on stored water be accompanied by evidence that the requesting agency owns the storage reservoir or has a contractual right to the water. For the purposes of regulating the distribution or use of water, the bill would specify that any stored water released in excess of needs of water rights is considered natural flow.

BILL: SB 1033

SUBJECT: Groundwater Rights And Surface Flows

SUMMARY: The Oregon Scenic Waterways System was established by a ballot initiative in 1970. The system initially included 496 free-flowing miles of six rivers -- segments of the Deschutes, Illinois, John Day, Owyhee and Rogue and all of the Minam. In 1972, a 12 mile segment of the Sandy River was added by governor's designation. The Legislature designated a 12 mile stretch of the Clackamas River in 1975, the North Fork of the Middle Fork of the Willamette River in 1983, Waldo Lake in 1983 and a seven mile segment of the Little Fork of the North Santiam in 1985. In 1988, Oregon voters passed a ballot measure that added 573 river miles to the system. The Scenic Waterways Program is primarily administered by the Parks and Recreation Department. Under current law, the Water Resources Commission is involved in the program on issues related to the issuance of water rights, dam construction and placer mining on scenic waterways.

During the last year, legal questions have arisen concerning whether and to what extent the Scenic Waterways Act applies to applications on new groundwater rights.

SB 1033 requires the Water Resources Department to review every application for the use of groundwater to find whether the use will measurably reduce the surface flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife. If the Department finds that the proposed use will measurably reduce surface flows, the Department must deny the application unless mitigation is provided or the applicant submits information to overcome the finding.

The bill requires the Department to condition every new groundwater appropriation within or above a scenic waterway to allow regulation of the use if analysis of data available after the issuance of a permit or certificate discloses that the appropriation will measurably reduce surface flows necessary to maintain the free-flowing character of the scenic waterway.

BILL: HB 3087

SUBJECT: Hydroelectric Task Force

SUMMARY: HB 3087 requires the Water Resources Department Director to convene a Hydroelectric Task Force to develop recommendations for the next Legislative assembly on the development of a coordinated state agency process for exercising state jurisdiction over hydroelectric projects in Oregon.

BILL: SB 830

SUBJECT: Wetlands Regulations

SUMMARY: This bill changes wetlands regulations to require the Oregon Division of State Lands to have clear standards for approving or denying permits and eliminates permit review on "sound policies of conservation." SB 830 limits mitigation requirements for wetlands to "replacement of functional attributes of lost wetland."

BILL: HB 3212

SUBJECT: Fish Screening

SUMMARY: This bill provides for a fish screening program where "certain water diversions (less than 30 cubic feet per second) may be required to install, operate and maintain screening or by-pass devices to provide adequate protection for fish populations present at the water diversion in accordance with the following provisions."

"The State Department of Fish and Wildlife shall establish a cost-sharing program to implement the installation of screening or by-pass devices on not less than 75 water diversions per year. The department shall select the water diversions to be screened from the priority listing of diversions established."

Cost Share: "If the department constructs and installs the by-pass or screening device, a fee shall be assessed against the person responsible for the diversion in an amount that does not exceed $5,000 or 40 percent of the construction and installation cost of the devices, whichever amount is the lesser. The fee shall be paid into the Fish Screening Subaccount. If the person responsible for the diversion constructs and installs the by-pass or screening device, the person shall be reimbursed from the Fish Screening Subaccount in an amount that does not exceed $10,000 or 60 percent of the actual construction and installation costs of the device, whichever amount is the lesser."

BILL: HB 3441:

SUBJECT: Watershed Management Program Consolidation

SUMMARY: HB 3441 transfers functions related to watershed management from the Strategic Management Group to the Governor's Watershed Enhancement Board. The bill would also make the Governor's natural resource advisor the Board chairperson.

BILL: HB 2431

SUBJECT: Water Rights Certificates

SUMMARY: HB 2431 allows the Oregon Water Resources Commission to issue a water right certificate to a district for lands not described in a permit if: water furnished by a district under a permit has been applied to beneficial use; the land not described in the permit is within the legally established boundaries of the district and is subject to district charges, assessments and liens; the certificate does not authorize a greater rate, duty or acreage than authorized by the permit and all other permit conditions are satisfied; the inclusion of lands not described in the permit will not result in injury to existing water rights or in enlargement of the right authorized under the permit; and the impact to the water source of including lands not described in the permit will not differ significantly from the impact expected at the time the permit was issued.

In the future, the bill would require a district to notify the Department at least 60 days before applying water to lands not described in a permit. Notice of the proposed change must be published in the Department's weekly mailing and for three successive weeks in a newspaper having general circulation in the county or counties where the affected lands are located.

BILL: SB 1156

NOTE: In July, Oregon Governor John Kitzhaber called for a special session so the Legislative Assembly could act on funding the Portland metropolitan area's South/North light rail project. The Oregon Legislative Assembly was held from July 28 - August 4, 1995. Amendments were attached to the final bill SB 1156 which affect fish and fish habitat. SB 1156 directs the Oregon Fish and Wildlife Commission to issue permits for activities to protect juvenile salmonids from cormorants. It also declares state preemption over cities, town, county or other political subdivision of this state in field of pesticide sale and use.

SUMMARY: The most significant language in SB 1156 limits timber management regulations. This amendment language is similar in scope to SB 160, which was passed by the legislature but vetoed by Governor Kitzhaber.

SB 1156 modifies harvesting and reforestation requirements under the Oregon Forest Practices Act. It outlines rulemaking authority of State Board of Forestry relating to the Oregon Forest Practices Act. It establishes conditions under which board shall not apply duly adopted rule to operation: "A landowner or timber owner who can prove that application of a rule or rules of the type described in subsection (1) of this section to a parcel proposed for a timber harvest operation will result in more than a 10 percent reduction in the volume or value of merchantable forest tree species available for harvest may apply to the State Forestry Department for approval of an alternate plan that will provide the greatest level of protection possible for the resources protected under ORS 527.710 (2) and (3), while reducing the impact on the volume or value of forest tree species below the 10 percent threshold." (Note: The "10 percent rule" sunsets July 1, 1997.)

V. WASHINGTON

PREFACE: The Washington legislature began January 9, 1995 and adjourned May 25, 1995. The 1996 Session is scheduled to begin January 8, 1996. The legislature passed a budget which eliminates the Puget Sound Water Quality Authority by June 30, 1996. The Puget Sound Water Quality Authorities' duties will be taken over by the Washington Department of Ecology. In addition, the Washington State Office of Marine Safety was also zeroed out in the budget.

For Further Information Contact: The Washington Legislative Hotline at (360) 786-7763.

BILLS PASSED

BILL: SB 5633

SUBJECT: Attempting To Limit The Growth And Spread Of The Noxious Weed Spartina.

SUMMARY: The legislature finds that Spartina and purple loosestrife present a significant hydrological threat to Washington. Current laws and regulations designed to protect the environment from detrimental human alteration are not designed to respond to emergency situations.

The Department of Ecology is directed to issue a short-term water quality modification to applicants who intend to use federally-approved herbicides and surfactants for invasive noxious aquatic weed control. The process of removal and control of Spartina or purple loosestrife using hand held or carried tools is not considered a hydraulic project requiring a hydraulic permit from the Department of Fish and Wildlife. The Department of Fish and Wildlife develops a brochure that may be used in lieu of a permit for noxious weeds other than Spartina and purple loosestrife. The process of removal or control of aquatic noxious weeds through the use of an approved herbicide or other treatment methods in an EIS or brochure are not considered a substantial development requiring a substantial development permit.

BILL: SB 5064

SUBJECT: Revising The Regional Fisheries Enhancement Program.

SUMMARY: SB 5064 assists regional fisheries enhancement groups in the following manner: The Department of Fish and Wildlife's habitat division works with regional groups, cities and counties to remove human-caused impediments to anadromous fish passage; the Department of Transportation works in partnership with the regional groups to eliminate fish passage barriers within budgetary constraints; regional group habitat and fish passage projects are exempt from the requirements of the shoreline permit process; the advisory board is directed to develop a training and technical services plan and to implement the plan; the Department of Fish and Wildlife develops rules for surplus salmon egg and carcass sales that are operated by regional enhancement groups and funds group projects. All proceeds from the sale of surplus salmon eggs and salmon carcasses by general funded Department of Fish and Wildlife hatcheries are placed in the regional fisheries enhancement group account.

BILL: SB 5632

SUBJECT: Providing For Flood Damage Reduction

SUMMARY: Reducing flood damage to the use of structural and nonstructural projects is in the public interest. It is the state's duty to assist in funding flood control projects.

Counties planning under growth management must make all regulations consistent with the county flood management plan. Counties planning under growth management must also make county land designations, such as agriculture, forest, mineral or critical areas, consistent with the county flood management plan.

Flood prevention and minimization is specifically added to the list of responsibilities of the State Environmental Policy Act. The Department of Fish and Wildlife gravel removal regulations are clarified. This includes establishment of an excavation line parallel to the water's edge, establishment of a minimum gradient upward from the excavation line at 1/2 percent and allowance for excavated minerals to be stored within the high water mark from June 15 to August 15.

Hydraulic permit decisions may not affect the amount, timing or delivery method of water diverted under surface water diversions after the water leaves the stream and before it returns.

Individuals who win hydraulic permit appeals may be awarded legal and engineering costs. The Department of Natural Resources River Management regulations are codified with changes allowing sand and gravel removal if it continues to increase flood protection. Gravel removal is allowed for areas that have accumulations of gravel, if consistent with the county flood plan.

No gravel royalty may be charged to counties that remove gravel from a stream for flood control purposes. Counties must complete flood hazard management plans by December 31, 1999, or earlier for counties with two or more presidentially declared flood disasters in the last ten years.

Individuals who win Shoreline Management Act permit appeals may be awarded legal and engineering costs. State agencies are required to actively seek and encourage removal of accumulated materials in rivers and streams through permit requirements. Policy should be based on designed open channel hydraulic engineering criteria.

The focus for county flood plans must include practices that avoid long-term accretion of sediments in streams, and methods must be established to stop river channel migration. Dredging of sand and gravel for navigation is not exempt from royalty payments. The Department of Transportation is required to participate in flood reduction projects based on benefits received. Flood protection projects are defined as work necessary to preserve, restore or improve natural or human-made stream banks or flood control facilities. The Departments of Fish and Wildlife, Natural Resources and Ecology are required to jointly develop memorandums of understanding to better coordinate the agencies' actions and permit the requirements. The goal of the memorandums is to minimize duplicate information and to develop a comprehensive permit process which is streamlined and easily understandable to permit applicants.

BILL: SB 5616

SUBJECT: Establishing A Single-Application Process For Watershed Restoration Projects.

SUMMARY: SB 5616 states that by January 1, 1996, the Washington Conservation Commission must develop a single application process by which all permits for watershed restoration projects may be obtained by a sponsoring agency for a project developed by that agency. Each agency designates an office or official as a designated recipient of project applications and informs the Conservation Commission of the designation. All agencies of state and local government must accept the single application developed by the commission. Permits required for watershed restoration projects developed with a watershed restoration plan must be processed in an expedited manner. Those permits and permit requirements include comprehensive planning by county planning commissions, permits for planning and zoning, the Growth Management Act, State Environmental Policy Act, the hydraulics code, the Shoreline Management Act, and the Water Quality Act. The permit coordination program of the proposed GMA-SMA regulatory reform bill may also be used, as can other types of coordinated permit arrangements.

BILL: SB 5155

SUBJECT: Exempting Certain Habitat Projects That Have Been Granted Hydraulic Permits From The Shoreline Management Act.

SUMMARY: A public or private project designed to improve fish habitat, fish passage, or wildlife habitat is exempt from the permit requirements of the Shoreline Management Act when: (1) the project is approved by the Department of Fish and Wildlife;(2) the project is given a hydraulic permit; and (3) the local government determines that the project is substantially consistent with the local shoreline master program, and provides a letter to that effect to the project proponent.

BILL: Senate Initiative 164

SUBJECT: Private property regulation.

NOTE: SI 164 was passed by the legislature and was to become law effective July 23, 1995. However, following its passage, enough signatures were collected by opponents of SI 164 to qualify it for referendum (ballot initiative) in the next election of November 1995.

SUMMARY: A new statutory standard would be established to determine if governmental regulations constitute a "taking" of private property for which compensation must be paid. This new statutory standard is broader than the court-established standards determining whether regulations constitute an unconstitutional "taking" of private property. Many regulations that do not constitute an unconstitutional "taking" of private property would appear to constitute a statutory "taking" of private property.

Except for regulations precluding a public nuisance, any governmental regulation limiting the use or development of a parcel of private property "for public benefit" is considered to be a statutory "taking" of property for which the government imposing the regulation must pay compensation. The term "for public benefit" is not defined. The same compensatory requirement applies to any governmental regulation limiting the use or development of a portion of a parcel of private property.

Private property includes land, any interest in land, any proprietary water right, and any crops, forest products, or resources capable of being harvested or extracted that are protected by the Fifth or 14th Amendments to the United States Constitution.

The compensation that is required to be paid is the reduction in fair market value of the parcel, or portion of the parcel, attributable to the regulation or restriction. Compensation must be paid within three months of when the regulation or restraint occurs. A government may not deflate the value of the property by suggesting or threatening a designation to avoid paying full compensation to the owner.

VI. SOURCES

I. ALASKA

II. CALIFORNIA

III. IDAHO

IV. OREGON

V. WASHINGTON:

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EDITOR'S NOTE: We welcome information on habitat news in your area. Information should pertain to habitat of marine, estuarine, or anadromous fish or shellfish. We especially are looking for information from southern California, Alaska, and Idaho. Feel free to fax us newspaper articles, copies of letters, public hearing notices, etc., to (503) 650-5426. Funding for this publication comes in part from Federal Aid in Sport Fish Restoration. If you have any questions regarding the contents of this publication, or about our habitat education program, please contact: Stephen Phillips, Editor, Habitat Hotline, 45 SE 82nd Drive, Suite 100, Gladstone, Oregon 97027-2522. Phone: (503) 650-5400, Fax: (503) 650-5426. Layout by Liza Bauman. Printed on 100% recycled sheet with minimum 50% post consumer fiber.

Pacific States Marine Fisheries Commission

45 S.E. 82nd Drive

Suite 100

Gladstone, Oregon 97027-2522

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