RECREATION AND CONSERVATION

[Filed November 5, 2019, 10:09 a.m.]

Preproposal statement of inquiry was filed as WSR 19-19-078.

Title of Rule and Other Identifying Information: Amending Title 420 WAC, adding a new chapter 420-08 WAC, Local and regional organization rules; adding new WAC 420-04-065 Duties of the governor's salmon recovery office; and amending WAC 420-04-010 Definitions.

Hearing Location(s): On December 12, 2019, at 9:50 a.m., at the Natural Resources Building, 1111 Washington Street S.E., Room 172, Olympia, WA 98501.

Date of Intended Adoption: December 12, 2019.

Submit Written Comments to: Katie Pruit, 1111 Washington Street S.E., Olympia, WA 98504-0917, email katie.pruit@rco.wa.gov, by December 9, 2019.

Assistance for Persons with Disabilities: Contact Leslie Frank, phone 360-902-0220, email leslie.frank@rco.wa.gov, 711 relay service, by December 10, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Proposed amendments to clarify the local process framework intended by the Salmon Recovery Act (chapter 77.85 RCW). These are technical amendments not anticipated to affect the existing process. New sections are added to capture the roles and responsibilities of lead entities, regional recovery organizations, and the governor's salmon recovery office. There are also two new definitions, as well as two definition changes to provide technical clarity.

Reasons Supporting Proposal: Salmon recovery in Washington state includes a multitude of partners working together from the bottom up to recover listed salmon populations. In 1998, the Salmon Recovery Act established the local process which led to a complex framework that is not easily communicated or understood by new or external partners. The recommended rule changes will formalize the foundational work that has been in place since 1998, thereby clarifying the process for the future.

Statutory Authority for Adoption: RCW 77.85.120 (1)(d) and chapter 34.05 RCW.

Statute Being Implemented: Chapter 77.85 RCW, Salmon Recovery Act.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington state recreation and conservation office, governmental.

Name of Agency Personnel Responsible for Drafting: Katie Pruit, 1111 Washington Street S.E., Olympia, WA, 360-725-5452; Implementation and Enforcement: Kaleen Cottingham, 1111 Washington Street S.E., Olympia, WA, 360-902-3000.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The recreation and conservation office is not listed as an agency to complete a cost-benefit analysis under RCW 34.05.328 (5)(a)(i).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

AMENDATORY SECTION(Amending WSR 16-07-085, filed 3/17/16, effective 4/17/16)

WAC 420-04-010Definitions.

For purposes of Title 420 WAC, the definitions in RCW 77.85.010 apply. In addition, unless the context clearly indicates otherwise, the following definitions also apply:

"Acquisition project" means a project that purchases or receives a donation of fee or less than fee interests in real property. These interests include, but are not limited to, conservation easements, access or trail easements, covenants, water rights, leases, and mineral rights.

"Agreement" or "project agreement" means the accord accepted by the office and the sponsor for the project and includes any attachments, addendums, and amendments, and any intergovernmental agreements or other documents that are incorporated into the project agreement subject to any limitations on their effect.

"Applicant" means any party that meets qualifying standards as described in RCW 77.85.010(6), including deadlines, for submission of an application soliciting a grant of funds from the board.

"Application" means the documents and other materials that an applicant submits to the office to support the applicant's request for grant funds.

"Board" means the salmon recovery funding board as described in RCW 77.85.110.

"Capacity funding" is a grant to lead entities and regional organizations as described in RCW 77.85.130(4) to assist in carrying out functions to implement chapter 77.85 RCW.

"Chair" means the chair of the board described in RCW 77.85.110.

"Citizens committee" means a committee established by a lead entity that consists of representative interests of counties, cities, conservation districts, tribes, environmental groups, business interests, landowners, citizens, volunteer groups, regional fish enhancement groups, and other habitat interests as described in RCW 77.85.050.

"Director" means the director of the office or that person's designee, as described in RCW 79A.25.150.

"Enhancement project" or "hatchery and harvest enhancement project" means a project that supports hatchery reform to improve hatchery effectiveness to minimize impacts to wild fish populations, ensure compatibility between hatchery production and salmon recovery programs, or support sustainable fisheries.

"Habitat project list" means the list of projects as described in RCW 77.85.010(3) compiled by a citizens' committee and submitted by a lead entity to the board as described in RCW 77.85.050(3). The habitat project list shall establish priorities for individual projects and define the sequence for project implementation as described in RCW 77.85.050. The list of projects in the habitat project list must be within the lead entity area as described in RCW 77.85.050(2). The habitat project list includes the lead entity ranked project list.

"Initiating governments" means the counties, cities, and tribal governments that choose to participate in the formation of a lead entity area.

"Lead entity" means a city, county, conservation district, special purposes district, tribal government, regional recovery organization or other entity that is designated jointly by any one or more of the counties, cities, and Native American tribes within the lead entity area as described in RCW 77.85.050.

"Lead entity area" means the geographic area designated jointly by any one or more of the counties, cities, and Native American tribes within that area, which is based, at a minimum, on a watershed resource inventory area, as described in RCW 77.85.010(13), combination of water resource inventory areas, or any other area as described in RCW 77.85.050(2) that does not overlap with another lead entity area for the same salmon species.

"Lead entity ranked project list((," also known as the "habitat work schedule,))" means those projects on the habitat project list that will be implemented in the current funding cycle per RCW 77.85.010(4) and as described in RCW 77.85.060.

"Manual(s)" means a compilation of state and federal laws; board rules, policies and procedures; and director procedures, forms, and instructions assembled in manual form for dissemination to parties that participate in the board's or office's grant program(s).

"Match" or "matching share" means the portion of the total project cost in the project agreement provided by the project sponsor.

"Monitoring or research project" means a project that monitors the effectiveness of salmon recovery restoration actions, or provides data on salmon populations or their habitat conditions.

"Noninitiating governments" means the counties, cities, and tribal governments that decline to participate in the selection of a lead entity area. Any government that declines to participate in the formation of a lead entity area, with or without formal notification, is a noninitiating government. Noninitiating governments may participate in other functions of the lead entity.

"Office" means the recreation and conservation office as described in RCW 79A.25.010.

"Planning project" means a project that results in a study, assessment, project design, or inventory.

"Preagreement cost" means a project cost incurred before the period of performance identified in the project agreement.

"Project" means the undertaking which is, or may be, funded in whole or in part with funds administered by the office on behalf of the board.

"Project area" means the area consistent with the geographic limits of the scope of work of the project. For restoration projects, the project area must include the physical limits of the project's final site plans or final design plans. For acquisition projects, the project area must include the area described by the legal description of the properties acquired in the project.

"Regional recovery organization" or "regional salmon recovery organization" means an organization described in RCW 77.85.010(7).

"Reimbursement" means the payment of funds from the office to the sponsor for eligible and allowable project costs that have already been paid by the sponsor per the terms of an agreement.

"Restoration project" means to bring a site back to its historic function as part of a natural ecosystem or improving or enhancing the ecological functionality of a site.

"Salmon recovery region" means a geographic area as described in RCW 77.85.010(10).

"Sponsor" means an eligible applicant under RCW 77.85.010(6) who has been awarded a grant of funds and is bound by an executed project agreement; includes its officers, employees, agents, and successors.

WAC 420-04-065Duties of the governor's salmon recovery office.

The purpose and duties of the governor's salmon recovery office are described in RCW 77.85.030. Among other duties, the governor's salmon recovery office must maintain and revise a statewide salmon recovery strategy as described in RCW 77.85.150.

Chapter 420-08 WAC

LOCAL AND REGIONAL ORGANIZATION RULES

WAC 420-08-010Forming a lead entity.

(1) All counties, cities, and tribal governments within a lead entity area must have an opportunity to determine whether they wish to initiate the formation of a lead entity area and the selection of a lead entity.

(2) Initiating governments must jointly designate, by resolution or letters of support, a lead entity area and select an entity or organization to act as a lead entity through an adopted resolution or letter of support as described in RCW 77.85.050.

(3) If a lead entity and lead entity area already exists and the initiating governments agree that the lead entity should be changed to another organization, they must do so by following subsections (1) and (2) of this section.

(4) If a noninitiating government decides to participate in the lead entity after it has been acknowledged by the office, they must adopt a resolution or letter of support and provide it to the office. Noninitiating governments may participate in other salmon recovery activities described in this title.

WAC 420-08-020Duties of a lead entity and citizens committee.

(1) A lead entity administers a local process to identify salmon habitat restoration and acquisition projects and activities that support salmon recovery efforts critical to implementing salmon recovery plans. To accomplish this purpose, a lead entity must hire a coordinator to:

(a) Facilitate the work of a citizens committee;

(b) Work closely with a regional salmon recovery organization, if within a recognized region, to develop a local strategy to restore salmon habitat that meets the needs identified in a salmon recovery plan; and

(c) Recruit organizations to implement salmon habitat restoration projects and activities identified in a local strategy.

(2) A lead entity must establish a citizens committee as described in RCW 77.85.050. A lead entity, or its fiscal agent, shall not designate itself as the citizens committee. A lead entity shall not make decisions on behalf of the citizens committee. The citizen committee must be comprised of people within the lead entity area that represent initiating governments, businesses, interest groups, and private citizens interested in salmon recovery. The citizen committee may include noninitiating governments.

(3) A lead entity must adopt a conflict of interest policy consistent with state guidance that applies to the lead entity and the citizens committee and other committees convened by the lead entity.

(4) The main purpose of a citizens committee is to develop a habitat project list as described in RCW 77.85.050, including a lead entity ranked list, that:

(a) Is based on the critical pathways methodology as described in RCW 77.85.060;

(b) Gives a preference for funding projects in areas that contain salmon species listed or proposed for listing under the federal Endangered Species Act as described in RCW 77.85.050 or supports tribal treaty fishing rights;

(c) Defines a sequence for project implementation and establishes priorities for individual projects as described in RCW 77.85.050 Habitat project lists; and

(d) Identifies federal, state, local, or private funding sources for individual projects as described in RCW 77.85.050.

(5) A lead entity must submit a habitat project list compiled by a citizens committee, including a lead entity ranked project list, to the board by the deadline established by the board and described in RCW 77.85.140. A lead entity must not reorder or substantively alter the habitat project list compiled by a citizens committee without citizens committee's approval.

(6) A citizens committee or lead entity may designate a local technical advisory group as described in RCW 77.85.060. The main purpose of a local technical advisory group is to:

(a) Assist in evaluating the technical merits of individual projects to ensure projects are scientifically valid;

(b) Assist with implementing the critical pathways methodology, including limiting factors analyses;

(d) Provide consultation to project sponsors and landowners on how to implement projects.

WAC 420-08-030Duties of a regional recovery organization.

(1) The main purpose of a regional recovery organization is to coordinate salmon recovery planning and implementation. A regional recovery organization works directly with the federal government to develop, implement, and monitor a regional salmon recovery plan. A regional recovery organization also works directly with the lead entities within the salmon recovery region to develop and implement the recovery plan.

(2) A regional organization may be selected as a lead entity per WAC 420-08-010 Forming a lead entity.

(3) Lead entities within a salmon recovery region may request the governor's salmon recovery office to recognize them as a regional salmon recovery organization as described in RCW 77.85.090 except for those lead entities within the areas covered by the Lower Columbia fish recovery board and Puget Sound leadership council.

(4) A regional organization must submit all federally recognized salmon recovery plans and amendments to the governor's salmon recovery office for incorporation into the statewide salmon recovery strategy.

(5) A regional organization shall advise the board on whether a project on a habitat project list submitted by a lead entity is a priority in the regional salmon recovery plan or strategy. The board will consider the regional organizations advice before it makes a decision on whether to fund a project.

WAC 420-08-040Capacity funding.

(1) The board may award capacity grants to regional salmon recovery organizations as described in RCW 77.85.030 and 77.85.090 and lead entities as described under RCW 77.85.130 for administrative support to implement salmon recovery activities. The governor's salmon recovery office shall administer capacity grants through an executed agreement as described in RCW 77.85.050.

(2) The office will execute an agreement for a capacity grant to a lead entity after the initiating governments select a lead entity area and a lead entity. If the office has an existing agreement for a capacity grant and a lack of consensus on a lead entity area or a lead entity develops, the office may suspend, terminate, or fail to renew the agreement with that lead entity until the initiating governments agree.