(1) Purpose. The purpose of this chapter is to:

(a) Control highway runoff into waters of the state to the maximum extent possible under state law;

(b) Establish procedures and criteria for WSDOT's highway runoff program mandated by the Puget Sound water quality management plan pursuant to chapter 90.70 RCW; and

(c) Provide for appropriate consultation and coordination with tribes, local governments, and other interested and affected parties.

(2) Authority. The authority for this chapter is provided by chapters 90.48 and 90.70 RCW.

(3) Applicability. This chapter applies to all state highway rights of way in the Puget Sound basin which WSDOT owns or controls by long-term lease or easement, or for which WSDOT has maintenance responsibility. This chapter is applicable subject to the availability of appropriated funds or other funding sources.

The definitions in this section apply to this chapter unless the context requires otherwise.

(1) "Average daily traffic" or "ADT" means the total traffic volume during a given time period (in whole days) greater than one day and less than one year divided by the number of days in that time period. ADT is determined by WSDOT.

(2) "Best management practices" or "BMPs" means physical, structural, and/or managerial practices that when used singly or in combination prevent or reduce pollution of water and have been approved by ecology. BMPs are listed and described in the manual defined in subsection (9) of this section.

(3) "Broadcast application" means a uniform application of pesticides to an entire area.

(4) "Buffer zone" means the minimum distance that a pesticide is permitted to be applied from a physical feature or sensitive area.

(5) "Capital improvement program plan" means a schedule of permanent physical structural improvements budgeted to fit financial resources.

(6) "Ecology" means the Washington state department of ecology.

(7) "EPA" means the U.S. Environmental Protection Agency.

(8) "Experimental BMP" means any treatment or methodology proposed for treatment of highway runoff that is not in the highway runoff manual, defined in subsection (9) of this section, and is being studied by WSDOT and/or ecology for adoption as a BMP.

(9) "Highway runoff manual" means the manual adopted by WSDOT and approved by ecology that contains BMPs to prevent or reduce pollution, and described in WAC 173-270-030.

(10) "Integrated pest management" or "IPM" means the selection, integration, and implementation of pest control that consists of: Prevention of pest problems; monitoring and evaluation of pests, damage and results of treatment; acknowledgment of population levels of pests that can be tolerated based on legal, economic, health, or aesthetic thresholds; use of natural control agents in an ecosystem; reliance to the maximum extent possible on nonhazardous biological, mechanical, and cultural treatment of pests; application of pesticides in a manner that minimizes damage to the ecosystem's natural controls and integrity; and use of pesticides only after all other methods have been evaluated.

(11) "Local government" means a county, city, town, or special purpose district that has authority to manage stormwater.

(12) "New construction" means the addition of one or more lanes, ramps, bridges, or other major structures to an existing state highway or the construction of a new state highway.

(13) "Pest" means any form of plant or animal life or virus (except virus on or in living man or other animal) which is normally considered to be a pest or which the director of the WSDA may declare by regulation to be a pest, including but not limited to, any insect, other arthropod, fungus, rodent, nematode, mollusk, or weed.

(14) "Pest treatment" means mechanical, biological, cultural, or chemical procedures or methods to manage, control, or reduce the influence of a pest.

(15) "Pesticide" means as defined by chapter 17.21 RCW, the Washington Pesticide Act, and regulated by the United States Environmental Protection Agency and WSDA.

(16) "Pollution" means such contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental, or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial use, or to livestock, wild animals, birds, fish, or other aquatic life.

(17) "Puget Sound basin" means the waters of Puget Sound south of Admiralty Inlet including Hood Canal and Saratoga Passage; the waters north to the Canadian border, including portions of the Strait of Georgia; the Strait of Juan de Fuca south of the Canadian border; and all land draining into these waters as mapped in WAC 173-500-040 Water resource inventory areas numbers 1 through 19.

(18) "Quality assurance and control plan" means a collection of policies, objectives, principles, and procedures for attaining data of known and accepted quality and establishes standards of performance for sampling, monitoring, and measurement.

(19) "Sensitive area" means an area or that due to its ground or surface water characteristics may be adversely affected or altered directly or indirectly by pollution and requires special vegetation management, stormwater management, or other practices.

(20) "Spot treatment" means the application of pesticides to a selected individual area or species.

(21) "Stormwater management manual" means the technical manual prepared by ecology for use by local governments and WSDOT that contains BMPs to prevent or reduce pollution in stormwater.

(22) "Stormwater treatment" means chemical, biological, or mechanical procedures or structural methods to remove, reduce, or neutralize pollution.

(23) "Waters of the state" means lakes, rivers, ponds streams, inland waters, underground waters, salt waters, and all other surface waters and water courses within the jurisdiction of the state of Washington.

(24) "Wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands are identified and delineated by the "Federal Manual for Identifying Jurisdictional Wetlands" dated January 19, 1989.

(25) "WSDA" means the Washington state department of agriculture.

(26) "WSDOT" means the Washington state department of transportation.

(1) Approved manual required. Six months after the effective date of ecology's stormwater management manual or six months after the effective date of this chapter, whichever is later, WSDOT shall submit to ecology a highway runoff manual. If WSDOT proposes to adopt a manual other than ecology's stormwater management manual as its highway runoff manual, WSDOT shall formally consult with the tribes and local governments about the contents of the highway runoff manual. The highway runoff manual shall be consistent with ecology's stormwater management manual and shall be adopted by WSDOT only after obtaining ecology's approval. After obtaining ecology's approval, WSDOT shall use the highway runoff manual to direct stormwater management for its existing and new facilities and rights of way in the Puget Sound basin.

(2) Amendments to manual.

(a) Ecology initiates amendments. If ecology amends its stormwater management manual to change or add a BMP or other technical requirement that applies to highways, ecology shall notify WSDOT in writing and send WSDOT a copy of the amendment. This notification shall include ecology's determination as to whether the highway runoff manual complies with the amendment. If the highway runoff manual does not comply with the amendment, WSDOT shall submit proposed amendments within sixty days unless ecology agrees to a time extension. Such proposed amendment shall be subject to ecology's review and approval.

(b) WSDOT initiates amendments. Amendments proposed by WSDOT to the approved highway runoff manual shall be submitted to ecology for review and approval. WSDOT shall formally consult with affected tribes and local governments during the development of proposed amendments. Ecology shall review and approve, conditionally approve or deny the proposed amendments within sixty days from the submittal date.

(3) More stringent standards.

(a) WSDOT shall use the minimum standards established in the highway runoff manual but may use more stringent standards.

(b) When a state highway is located in the jurisdiction of a local government that is required by ecology to utilize more stringent standards to protect the quality of receiving waters, WSDOT shall comply with the same standards to promote uniform stormwater treatment.

(c) WSDOT shall comply with standards identified in watershed action plans for WSDOT rights of ways as required by WAC 400-12-570.

(4) Project coordination. WSDOT shall consult with appropriate tribes and local governments and evaluate local conditions for design, construction, and maintenance of stormwater facilities as indicated in WSDOT's utilities manual. Other agencies and organizations that have an interest or expertise in stormwater may also be consulted. WSDOT, tribes, and local governments are encouraged to jointly develop and maintain stormwater facilities.

(5) Contents of manual. The highway runoff manual shall include, but not be limited to, the following:

(a) BMPs for the control of erosion and sedimentation from construction sites, including standards for operation and maintenance;

(b) Hydrologic analysis procedures, including selection of design storms and estimation of runoff;

(c) Design, operation, and maintenance standards for retention and/or detention facilities and conveyance systems that shall emphasize systems which maximize water quality benefits as well as water quantity control, such as inclusion of biofiltration techniques where practicable;

(d) BMPs for the control of pests, excluding weed control which shall be addressed in the vegetation management program described in WAC 173-270-040;

(e) BMPs for the selection and use of deicing chemicals and traction grit which, as a minimum, shall consist of the following: (i) Traction grit particles should be as large as suitable for application on highways for traction purposes because large particles are less readily transported into waters of the state; (ii) selection and use of deicing chemicals shall include consideration of potential effects on water quality and the beneficial uses of potentially affected waters; (iii) stockpiles containing deicing chemicals shall be investigated for existing and potential water quality problems; and (iv) stockpiles that have an identified problem shall be covered, curbed, diked, placed on an impervious surface, and/or located so runoff can not carry dissolved chemicals into waters of the state; and

(f) BMPs for waste disposal from highway runoff system maintenance.

(6) Experimental BMPs.

(a) WSDOT request. WSDOT may request in writing that ecology approve the use of an experimental BMP for one or several sites. The request shall include, but need not be limited to, a description of: (i) The experimental BMP; (ii) why the experimental BMP is being requested; (iii) why the BMPs in the highway runoff manual are not appropriate; (iv) applicable construction techniques; (v) the site or sites at which use of the experimental BMP is proposed; (vi) the characteristics of the site or sites; (vii) design criteria for the experimental BMP; (viii) maintenance procedures; (ix) cost estimates; (x) monitoring procedures; (xi) the time needed for monitoring; (xii) the anticipated results; (xiii) if appropriate, an approved BMP that could be used if the experimental BMP fails; and (xiv) consultation with interested and affected parties including tribes, local governments, and contiguous property owners.

(b) Ecology review and approval. After reviewing WSDOT's request, ecology may approve, conditionally approve, or deny the use of the experimental BMP for specific sites. Any approval shall be for a period of time not to exceed four years unless ecology determines, upon request and justification by WSDOT, that unusual circumstances justify a longer time period.

(c) Evaluation criteria. In evaluating an experimental BMP, ecology shall consider factors it deems appropriate, including, but not limited to: The experimental BMP's effectiveness in protecting water quality and beneficial uses; its reliability, cost, ease of construction; and maintenance requirements.

(d) BMP status. Before ecology's authorization for WSDOT's use of the experimental BMP expires, WSDOT shall consult with affected tribes, local governments, or property owners. WSDOT shall document the results of the experimental BMP and shall determine whether to request amendment of the highway runoff manual to include the experimental BMP as an approved BMP. Before ecology's authorization expires, WSDOT shall either request an amendment to the highway runoff manual under subsection (2)(b) of this section or inform ecology in writing that it is not proposing to amend the highway runoff manual to include the BMP. Based upon the predicted results in the original request, monitoring data and other information relevant to WSDOT's request, ecology shall determine whether an experimental BMP that is not proposed to be included in the highway runoff manual shall be replaced with an approved BMP.

(1) General. The purposes of vegetation management in highway rights of way are to establish and maintain stable plant communities that resist encroachment by undesirable plants, noxious weeds, and other pests; meet WSDOT operational, health, natural resources, and environmental standards; be cost effective; and protect the public investment with minimal negative impacts on the environment.

(2) Program required. WSDOT shall prepare and implement a vegetation management program for all state highways within the Puget Sound basin. WSDOT shall obtain ecology's preliminary approval of the program before WSDOT conducts a public hearing. WSDOT shall formally consult with the tribes and local governments during preparation of the proposed program. After the public hearing, WSDOT shall obtain ecology's approval before WSDOT adopts the program. The program shall be adopted by September 30, 1991. WSDOT and ecology shall review the program at least every two years beginning September 30, 1993. Either ecology or WSDOT may initiate amendment of the program. Amendments shall be prepared, approved, and adopted in accordance with the procedures of this subsection for the initial development of the vegetation management program.

(3) Contents of program.

(a) The vegetation management program shall include, but need not be limited to vegetation management policies; technical guidelines; procedures to implement policies and guidelines; and roadside management plan procedures and standards.

(b) Vegetation management policies. These policies, at a minimum, shall address:

(i) Operational, aesthetic, and environmental standards;

(ii) Integrated pest management;

(iii) Coordination between WSDOT and local governments, abutting property owners, and tribes, including public notification, option to maintain by contiguous property owner and the option to maintain by a preferred management technique of the contiguous property owner;

(iv) Recordkeeping;

(v) Training and education for vegetation management employees; and

(vi) Testing for pesticides at storage, loading, and mixing areas and, if necessary, in groundwater and nearby surface water that may be contaminated by or affected by pesticides.

(c) Technical guidelines. These guidelines, at a minimum, shall address:

(i) Integrated pest management which shall address monitoring, establishing injury levels, setting action levels, selecting treatment, and evaluating treatment.

(A) Monitoring. Monitoring guidelines shall provide for: Identification of the potential pest and/or problem and sensitive areas; and observation of the vegetation on the site, or the site itself for potential pest problems at regular intervals. The schedule and methods of monitoring shall be appropriate to minimize the severity of damage caused by the pest.

(B) Establishing injury levels. Guidelines for establishing injury levels shall provide for determination of when a pest is likely to cause significant damage and require action to prevent unacceptable damage or public safety problems. Accurate records shall be kept so adequate data is available to make decisions. A problem shall be noted before any action is taken.

(C) Setting action levels. Guidelines for setting action levels shall provide for prioritization of target species and determination of when to initiate action so that unacceptable injury levels are not reached.

(D) Selecting treatment. Selection of pest treatment strategies and tactics shall provide for safety of highway users; protect the environment and human health; and provide for the stewardship of the public investment. This shall include an effort to minimize the use of chemical controls.

(E) Evaluating treatment. After pest treatment, the site shall be inspected to determine whether the pest treatment had the desired results. Adequate time shall be provided for the pest treatment to function before it is evaluated. If the pest treatment did not have the desired results, the treatment may be modified. Desired results may be examined to determine if they were realistic and/or appropriate;

(ii) Measures to reduce the amount of pesticides used to the least possible including measures to reduce the use of any state restricted use pesticides on WSDA's list for the protection of groundwater found in WAC 16-228-164;

(iii) Criteria for the selection of pesticides that shall include, but not be limited to, target specificity, toxicity, persistence, migration characteristics, time of application and site conditions of treatment area, including slope and permeability;

(iv) Procedures for sampling and analysis for pesticide contamination in storage, loading, and mixing areas and, if appropriate, groundwater and surface water with the use of Puget Sound protocols for sediment sampling of marine sediment for EPA priority pollutants is recommended where appropriate;

(v) A spill cleanup plan;

(vi) Methods for safe transportation of pesticides;

(vii) A recordkeeping system on pesticide use, including format;

(viii) Criteria for the identification of sensitive areas;

(ix) Buffer zones to protect waters of the state, public and private supply wells and watersheds, irrigation ditches, ecology regulated areas, and sensitive areas;

(x) Pesticide storage including a requirement that pesticides shall be stored in a secure building with an impermeable floor and controlled drains;

(xi) Vegetation selection in accordance with WSDOT's design manual with emphasis given to reduced maintenance; and

(xii) Vegetation management personnel training and education.

(d) Procedures for the implementation of the policies and guidelines.

(e) Procedures and standards for the preparation and implementation of roadside management plans for specific segments of state highway to assist WSDOT field crews manage state highway rights of way according to the approved vegetation management policies and technical guidelines. WSDOT shall consult with affected tribes, local governments, and other interested parties during preparation of these procedures and standards. WSDOT shall consult with affected tribes, local governments, and other interested parties during preparation of roadside management plans. These plans, at a minimum, shall address:

(i) Goals and objectives;

(ii) Identification of sensitive areas and minimum buffer zones;

(iii) Maintenance activities;

(iv) Budget estimates; and

(v) Evaluation methods and standards.

WSDOT shall incorporate BMPs in all new construction projects for which design is started after the effective date of this chapter. For projects that are being designed or constructed when this chapter becomes effective, WSDOT shall implement BMPs to the maximum extent practicable to protect water quality. If the cost of constructing water quality BMPs makes a project that is being designed when this chapter becomes effective impracticable, then such BMPs shall be retrofitted at a later date. WSDOT shall submit water pollution control plans to ecology for review and approval for new construction and shall obtain other appropriate authorizations prior to construction.

(1) Inventory required. WSDOT shall prepare and maintain an inventory of all state highways in the Puget Sound basin. The purpose of the inventory is to determine where water quality BMPs need to be installed, to assist identification of priority projects, and to provide a basis for the evaluation of the program. WSDOT shall begin its inventory on highways with an ADT of fifty thousand or greater. The inventory and rating of highways with an ADT of less than fifty thousand shall be sufficient to provide projects for the six-year capital improvement program plan.

(2) Contents of inventory. The inventory shall be developed for homogeneous highway segments and shall include, but not be limited to:

(a) Highway segment identification including name, location, type, traffic volume classification, local government(s) with jurisdiction, interested tribes, and WSDOT district;

(b) Status of stormwater management as follows: (i) BMPs are present and/or a local government is receiving and/or treating the highway runoff; (ii) BMPs are feasible or the local government will receive and/or treat highway runoff; or (iii) BMPs are not practicable; and

(c) Name of any water quality project completed since the effective date of this chapter, length of project, year of construction, and cost.

(3) Priority rating and ranking.

(a) WSDOT shall establish an annual project priority list for each WSDOT district within the Puget Sound basin. For each fiscal year WSDOT shall select needed improvements for each district inventoried as required by subsection (1) of this section. WSDOT shall divide these needed improvements into projects, considering funds available but in no case less than one project per year in each district unless all needed projects are completed.

(b) Priority rating criteria. WSDOT shall develop a priority rating and ranking system and submit it to ecology for concurrence.

(c) Priority ranking. WSDOT, using the priority ratings and rankings prepared using the system required in subsection (2)(b) of this section, shall determine which projects are to be implemented in each WSDOT district during the fiscal year. WSDOT may modify this ranking for good reason including the participation in a joint project proposed by a local government or tribe.

(4) Capital improvement program plan.

(a) The capital improvement program plan is to promote efficient use of resources, to coordinate projects, to aid compliance with the long-range program targets set forth in subsection (5) of this section and to ensure that difficult projects and those that require lengthy lead time are constructed in a reasonable time.

(b) WSDOT shall prepare a biennially updated water quality capital improvement program plan. WSDOT shall consult with ecology, tribes, and local governments throughout the planning process including the inventory. The capital improvement program plan shall be for a six-year period and include the following:

(i) An inventory of potential projects for the six-year period, including fiscal, technical, work force, legislative requirements, restrictions, and an initial evaluation of their relative priority;

(ii) A schedule for potential execution of projects in a long-range program list which considers priority relationships of projects coupled with legislative, fiscal, technical, and work force restrictions;

(iii) Selection of projects for early action from this schedule; and

(iv) Formal adoption by WSDOT after public review.

(c) Ecology shall review the proposed WSDOT capital improvement program plan and submit written comments to WSDOT before public review and again before adoption by WSDOT.

(d) After a public hearing, WSDOT shall adopt the capital improvement program plan after making appropriate revisions deemed necessary by public input.

(5) Long-range program.

(a) WSDOT shall complete all practicable BMP projects or transmit highway runoff to tribes or local governments for stormwater treatment for highways with an ADT of fifty thousand and greater by December 31, 2005, and for other highways by December 31, 2015.

(b) At least every six years WSDOT and ecology shall evaluate these target dates. Ecology or WSDOT may initiate revision of the target dates. In evaluating any proposed revision of a target date, ecology and WSDOT are to consider factors including, but not limited to, the number and projected costs of the projects yet to be completed, the degree of difficulty to construct the remaining sites, the projected level of funding, any revisions to the state water quality standards and any revisions to the manual required by WAC 173-270-030(1).

(6) Negotiations. Before transmitting to or requesting treatment of highway runoff by a tribe, local government or property owner, WSDOT shall negotiate with the tribe, local government, or property owner. WSDOT shall provide relevant information that shall include, but not be limited to, existing agreements to accept highway runoff, characteristics of the highway runoff, the reasons WSDOT is not treating the runoff on its own right of way and any proposed financial considerations for quality and/or quantity control.

(7) Disposal sites. WSDOT shall prepare an inventory, by district and maintenance area, of all sites, including all known inactive sites, where WSDOT disposes highway sweepings and sediments from stormwater facilities maintenance activities. Inventory information for WSDOT owned and leased sites and sites WSDOT for which has an easement shall include a scaled map illustrating property boundaries and the extent of the fill area, and where possible, an estimate of the volume of the fill present.

(1) BMP effectiveness monitoring.

(a) Monitoring procedures. WSDOT shall formulate and implement monitoring procedures for each type of BMP employed. The procedures shall include a quality assurance and control plan.

(b) Waivers. After application by WSDOT, ecology may grant a waiver from monitoring a BMP if ecology determines there is adequate knowledge about the BMP's water quality performance.

(2) Pesticide monitoring. WSDOT shall formulate a pesticide monitoring policy, including but not limited to, threshold determination and frequency of monitoring. WSDOT also shall formulate procedures for monitoring pesticides, including the use of benthic organisms.

(1) Biennial report required. WSDOT shall prepare and submit to ecology a report by September 30 of each odd-numbered year beginning September 30, 1991.

(2) Content of report. The biennial report shall include, but is not limited to:

(a) Monitoring report for both approved and experimental BMPs and pesticides describing monitoring procedures and interpreting results. Included may be recommendations to improve monitoring procedures, findings on which BMPs are the most effective, combinations of BMPs that optimize pollution removal, and recommendations for experimental BMPs;

(b) A pesticide usage inventory, including (i) the amount of pesticides by product by pounds of active ingredient applied for shoulder residual, landscaped areas, brush control, general weed control, noxious weed control, spot treatment and broadcast application by district, area, highway segment, and if feasible, by county and (ii) an analysis and interpretation shall be included with the data;

(c) Storage, loading, and mixing area soil and groundwater contamination report for the presence of pesticides, including any cleanup efforts required, proposed, or completed since the adoption of this chapter;

(d) A deicing chemicals and traction grit usage report including:

(i) Product and quantities of deicing chemicals used in the Puget Sound basin by WSDOT district and maintenance area including chemical properties and known effects upon water quality;

(ii) Stockpile locations, with quantities of traction grit abrasive and deicing chemicals used during each season;

(iii) Cleanup practices to prevent or lessen traction grit and deicing chemical entry into waters of the state;

(iv) Locations prohibiting use of deicing chemicals or specific products due to water quality considerations;

(v) Training of personnel;

(vi) Experiments conducted on new products or procedures and experiments that WSDOT proposes;

(e) BMP maintenance report. Reports that shall submit BMP maintenance reports to ecology that shall include, but are not limited to:

(i) Dates that segments of state highway BMPs are inspected and/or maintained;

(ii) The general condition of BMPs;

(iii) Maintenance accomplished;

(iv) The need to reconstruct any BMPs;

(v) Any evaluation of a BMP type;

(vi) Estimated cost to maintain a BMP;

(vii) Suggested improvements to BMPs or their maintenance procedures; and

(viii) Training of personnel;

(f) Inventory for state highways with a fifty thousand ADT or greater required by WAC 173-270-060(1);

(g) Priority list for state highways with less than fifty thousand ADT required by WAC 173-270-060(3);

(h) Capital improvement program required by WAC 173-270-060(4);

(i) Inventory of all WSDOT highway disposal sites required by WAC 173-270-060(6);

(j) Status of roadside management plans by district and maintenance area; and

(k) A summary of the negotiations required by WAC 173-270-060(6).

Water quality requirements of this chapter shall be enforced through all methods available to ecology, including, but not limited to, those described in chapter 90.48 RCW. For all nonwater quality shortfalls WSDOT shall submit written explanation to ecology, together with proposed remedies.

If any provision of this chapter or its application to any person, entity, or circumstance is held invalid, the remainder of this chapter or the application of the provision to other persons, entities, or circumstances shall not be affected.