1236-S

AN ACT Relating to fees for water rights and related approvals; amending RCW 90.03.015, 90.03.270, 90.03.470, and 90.03.471; creating new sections; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that a water right confers significant economic benefits to the water right holder. The fees associated with acquiring a water right have not changed significantly since 1917. Water rights applicants pay less than two percent of the costs of the administration of the water rights program. The legislature finds that, since water rights are of significant value, water rights applicants should contribute more to the cost of administration of the water rights program.

The legislature also finds that an abrupt increase in water rights fees could be disruptive to water right holders and applicants. The legislature further finds that water rights applicants have a right to know that the water rights program is being administered efficiently and that the fees charged for various services relate directly to the cost of providing those services.

Therefore, the legislature hereby establishes interim fees for the water rights program for the 1993-95 biennium, with the level of fees targeted to account for approximately one-third of the costs of administering the water rights program. The legislature also creates a task force to review the water rights program, to make recommendations for streamlining the application process and increasing the overall efficiency and accountability of the administration of the program, and to return to the legislature with a proposal for a fee schedule where the fee levels relate clearly to the cost of services provided.

Sec. 2. RCW 90.03.015 and 1987 c 109 s 65 are each amended to read as follows:

As used in this chapter:

(1) "Department" means the department of ecology;

(2) "Director" means the director of ecology; ((~~and~~))

(3) "Nonconsumptive use" means a water use in which there is no diversion or withdrawal from the source, or in which water is diverted or withdrawn and returned immediately to the source at the point of diversion or withdrawal and meets water quality standards for the source;

(4) "Person" means any firm, association, water users' association, corporation, irrigation district, or municipal corporation, as well as an individual;

(5) "Reservoir" means any water stored for a beneficial use held behind a dam or dike to a depth of ten feet or more at its deepest point, or of ten or more acre-feet of water. A reservoir is also a water holding impoundment adjacent to a stream channel when water will be required to fill it, if the water in the holding area is of a depth of ten feet or more at its deepest point or is of ten or more acre-feet; and

(6) "Short-term water use" means an emergency use of water or a nonrecurring temporary use of water for up to four months duration, with a possible extension of not more than four additional months upon approval by the department.

Sec. 3. RCW 90.03.270 and 1987 c 109 s 85 are each amended to read as follows:

Upon receipt of an application it shall be the duty of the department to make an endorsement thereon of the date of its receipt, and to keep a record of same. If upon examination, the application is found to be defective, it shall be returned to the applicant for correction or completion, and the date and the reasons for the return thereof shall be endorsed thereon and made a record in his office. No application shall lose its priority of filing on account of such defects, provided acceptable maps, drawings and such data as is required by the department shall be filed with the department within such reasonable time as it shall require. Within ten working days of receipt of the complete application, the department shall provide the applicant with an estimate of the applicant's examination and permit fees.

Sec. 4. RCW 90.03.470 and 1987 c 109 s 98 are each amended to read as follows:

((~~The following fees shall be collected by the department in advance:~~

(1) For the examination of an application for permit to appropriate water or on application to change point of diversion, withdrawal, purpose or place of use, a minimum of ten dollars, to be paid with the application. For each second foot between one and five hundred second feet, two dollars per second foot; for each second foot between five hundred and two thousand second feet, fifty cents per second foot; and for each second foot in excess thereof, twenty cents per second foot. For each acre foot of storage up to and including one hundred thousand acre feet, one cent per acre foot, and for each acre foot in excess thereof, one-fifth cent per acre foot. The ten dollar fee payable with the application shall be a credit to that amount whenever the fee for direct diversion or storage totals more than ten dollars under the above schedule and in such case the further fee due shall be the total computed amount less ten dollars.

Within five days from receipt of an application the department shall notify the applicant by registered mail of any additional fees due under the above schedule and any additional fees shall be paid to and received by the department within thirty days from the date of filing the application, or the application shall be rejected.

(2) For filing and recording a permit to appropriate water for irrigation purposes, forty cents per acre for each acre to be irrigated up to and including one hundred acres, and twenty cents per acre for each acre in excess of one hundred acres up to and including one thousand acres, and ten cents for each acre in excess of one thousand acres; and also twenty cents for each theoretical horsepower up to and including one thousand horsepower, and four cents for each theoretical horsepower in excess of one thousand horsepower, but in no instance shall the minimum fee for filing and recording a permit to appropriate water be less than five dollars. For all other beneficial purposes the fee shall be twice the amount of the examination fee except that for individual household and domestic use, which may include water for irrigation of a family garden, the fee shall be five dollars.

~~(3) For filing and recording any other water right instrument, four dollars for the first hundred words and forty cents for each additional hundred words or fraction thereof.~~

(4) For making a copy of any document recorded or filed in his office, forty cents for each hundred words or fraction thereof, but when the amount exceeds twenty dollars, only the actual cost in excess of that amount shall be charged.

~~(5) For certifying to copies, documents, records or maps, two dollars for each certification.~~

~~(6) For blueprint copies of a map or drawing, or, for such other work of a similar nature as may be required of the department, at actual cost of the work.~~

(7) For granting each extension of time for beginning construction work under a permit to appropriate water, an amount equal to one-half of the filing and recording fee, except that the minimum fee shall be not less than five dollars for each year that an extension is granted, and for granting an extension of time for completion of construction work or for completing application of water to a beneficial use, five dollars for each year that an extension is granted.

~~(8) For the inspection of any hydraulic works to insure safety to life and property, the actual cost of the inspection, including the expense incident thereto.~~

~~(9) For the examination of plans and specifications as to safety of controlling works for storage of ten acre feet or more of water, a minimum fee of ten dollars, or the actual cost.~~

~~(10) For recording an assignment either of a permit to appropriate water or of an application for such a permit, a fee of five dollars.~~

~~(11) For preparing and issuing all water right certificates, five dollars.~~

~~(12) For filing and recording a protest against granting any application, two dollars.~~)) (1) For the 1993-95 fiscal biennium, the following interim fees shall be collected in advance by the department:

(a) For filing with the department each application to appropriate public water, including short-term uses; construct a reservoir; or change or transfer a water right, including seasonal and temporary changes, the fee is one hundred dollars. The filing fee is due upon submittal of the application to the department. The application will not be considered complete, accepted for filing, or assigned a priority date until the filing fee is paid in full.

(b) For the examination of an application for a permit to appropriate water, the following fee schedule shall apply:

(i) For applications for a quantity greater than zero cubic feet per second and less than or equal to one cubic foot per second, the fee is one hundred forty dollars for each one-tenth cubic foot per second or portion thereof, with a minimum fee of three hundred dollars.

(ii) For applications for a quantity greater than one cubic foot per second and less than or equal to ten cubic feet per second, the fee is the sum of the fee identified in (b)(i) of this subsection plus one thousand dollars for each additional cubic foot per second or portion thereof greater than one cubic foot per second.

(iii) For applications for a quantity greater than ten cubic feet per second and less than or equal to one hundred cubic feet per second, the fee is the sum of the fees identified in (b)(ii) of this subsection plus five hundred dollars for each additional cubic foot per second or portion thereof greater than ten cubic feet per second.

(iv) For applications for a quantity of more than one hundred cubic feet per second, the fee is sixty thousand dollars.

(c) For examination of an application to construct a reservoir, the fee is five hundred dollars or one dollar per acre-foot of capacity, whichever is greater. The fee shall not exceed fifty thousand dollars. "Reservoir" shall have the definition established in RCW 90.03.015.

(d) For examination of a permanent change or transfer, except for a permanent change or transfer associated with a trust water right acquired pursuant to chapter 90.38 or 90.42 RCW, the fee is one-fourth of the examination fee required for a similar application for a new water right. However, the fee shall not be less than one hundred dollars nor more than two thousand dollars.

(e) For examination of a short-term water use as defined in RCW 90.03.015, a temporary or seasonal change or transfer, a drought emergency permit or transfer, or a replacement well or replacement point of diversion that the department determines does not involve a significant change from the original water right, there is no examination charge. The only applicable fee is the filing fee identified in (a) of this subsection.

(f) For examination of a permanent or temporary change or transfer associated with a trust water right acquired pursuant to chapter 90.38 or 90.42 RCW, there is no examination or permit/certificate fee. The only applicable fee is the filing fee identified in (a) of this subsection. The purpose of eliminating the examination fee for changes or transfers associated with trust water rights is to provide an incentive for the voluntary reallocation of water to meet existing and future water needs.

(g) For examination of an application for an existing project or change established without the required prior approval of the department, the fee is the same examination fee as for a new application plus twenty-five percent. Prior approval may include possession of a valid water right claim, a permit or certificate to appropriate public waters, or a temporary permit issued by the department. The additional twenty-five percent fee is assessed to discourage appropriation of water without the required prior approval of the department.

(h) For the combined services of issuance of a permit to appropriate water, monitoring project construction, and issuance of a final certificate of water right, or for authorization and certification of a change or transfer of a water right, the fee is one- half of the examination fee for an equivalent quantity of water, with a minimum fee of one hundred dollars.

(i) For granting each extension of time for beginning construction, completing construction, or completing application of water to a beneficial use, the fee is one hundred dollars.

(j) For recording an assignment of a permit or an application to appropriate water, the fee is one hundred dollars for each assignee.

(k) For an application for a new water right or for a reservoir, where the application was filed and accepted by the department prior to January 1, 1993, the examination fees and permit/certificate fees are one-half the amount indicated in (b), (c), and (h) of this subsection, with a minimum fee of one hundred dollars.

(l) For the examination of plans and specifications as to the safety of controlling works for storage of ten acre-feet or more of water, the fee is the actual cost to the department for conducting the examination, with a minimum fee of five hundred dollars. However, no fee shall be assessed for examining plans and specifications to remove an unsafe dam.

(m) For the inspection of controlling works for storage of ten acre-feet or more of water for the purpose of ensuring safety to life and property, the fee is the actual cost of inspection and related expenses. However, no fee shall be assessed for periodic inspections of federally licensed hydropower projects.

(n) For filing and recording a protest against granting any application filed pursuant to this chapter or chapter 90.44 RCW, the fee is one hundred dollars.

(o) If the owner so requests, the department may issue an amended certificate of water right reflecting a change in ownership, for a fee of fifty dollars. However, a new owner is not required to apply for such a certificate if the new owner has purchased property with an existing water right.

(p) For the 1993-95 fiscal biennium, any applicant proposing use of one cubic foot per second or less regardless of whether the application was filed before or after the effective date of this act, may petition the department and provide evidence that the application is for a nonconsumptive use of water as defined in RCW 90.03.015. If the department confirms that the proposed use is nonconsumptive, the fee for examining the application is twenty-five percent of the examination fee for a similar amount of water, with a minimum fee of one hundred dollars.

(2) The department shall provide timely notification by certified mail with return receipt requested to applicants that fees are due. No action may be taken until the fee is paid in full. Except as provided in section 7 of this act, failure to remit fees within sixty days of the department's notification shall be grounds for rejecting the application or cancelling the permit. Cash shall not be accepted. Fees must be paid by check or money order and are nonrefundable.

For purposes of calculating fees for ground water filings, one cubic foot per second shall be regarded as equivalent to four hundred fifty gallons per minute.

(3) The department shall provide each applicant with a report regarding the status of that person's application no later than one year following submittal of an application that is completed as provided in RCW 90.03.260, 90.03.270, 90.03.380, 90.44.060, and 90.44.100. The department shall make a good faith effort to expedite action on water rights applications.

Sec. 5. RCW 90.03.471 and 1987 c 109 s 99 are each amended to read as follows:

((All fees, collections and revenues derived under RCW 90.03.470 or by virtue of RCW 90.03.180, shall be used exclusively for the purpose of carrying out the work and performing the functions of the division of water resources of the department.)) The water rights fee account is created in the state treasury. All fees collected under RCW 90.03.470 and pursuant to ground water applications under chapter 90.44 RCW shall be deposited in this account. Expenditures from the account are subject to legislative appropriation and may be used only for payment for administration of the water rights and dam safety programs.

NEW SECTION. Sec. 6. (1) There is created a water rights fees task force. The task force shall be comprised of twelve members, who are appointed as follows:

(a) Two members of the Washington state house of representatives, one from each major caucus, to be appointed by the speaker of the house;

(b) Two members of the Washington state senate, one from each major caucus, to be appointed by the president of the senate;

(c) Eight members, to be appointed jointly by the speaker of the house of representatives and the president of the senate, to represent the following interests: Agriculture, aquaculture, business, cities, counties, environmentalists, state agencies dealing with water issues, and water and other utilities. The task force may establish technical advisory committees as necessary to complete its tasks.

(2) The task force shall conduct a comprehensive review of water rights fees and related policy issues. The task force's tasks shall include but not be limited to:

(a) Identification of the costs associated with the various types of services provided and examination of how these costs compare with the fees charged for these services;

(b) Identification of appropriate accountability measures for the department to employ in administration of the water rights program. Recommendations of accountability requirements and measurements shall take into account the distinctive characteristics of the water rights program, that is, that the department receives a large number of applications on a one-time basis and that the department must meet its legal obligations under the doctrine of prior appropriation.

(c) Identification of which program activities should be eligible for cost recovery from fees, as well as which direct and indirect costs of program administration;

(d) Review of the application, examination, and water rights permit requirements for marine water users to determine if these users should receive special consideration;

(e) Review of the definition and treatment of nonconsumptive water uses to determine if and what special consideration should be given to these users;

(f) Review of the fees and accounting methods for the dam safety program; and

(g) Establishment of a reasonable time framework for completion of new and pending water rights applications, and an analysis of the staff and funding levels required to meet the established time framework.

(3) Before July 1, 1994, the task force shall:

(a) Provide recommendations to the department on ways to improve the efficiency and accountability of the water rights program;

(b) Provide recommendations to the legislature on statutory changes necessary to make these efficiency and accountability improvements; and

(c) Propose a new fee schedule for the water rights program which incorporates the results of the task force's work and which funds at least fifty percent of the cost of services being delivered through fees.

(4) The department and the legislature shall jointly provide for the staff support of the task force.

(5) The task force shall convene no later than August 1, 1993. Task force members shall elect a chair and adopt rules for conducting the business of the task force. The task force shall expire on December 30, 1994.

NEW SECTION. Sec. 7. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately. This act applies retroactively to January 1, 1993.

The department shall notify, by certified mail with return receipt requested, any person with a water right action pending before the department if the fee for that action is increased by passage of this legislation. The additional fees are payable within one hundred twenty days of such notice. The department's notice shall include a statement that any person wishing to continue an application or other request shall, within ninety days of the notice, request in writing that the department continue to proceed with the application or other request. If no response is received within ninety days, the department shall send a final notice by certified mail with return receipt requested. The final notice shall provide an additional thirty days in which to respond. Failure to respond within the time required in this section will result in automatic cancellation of the application or other request and forfeiture of the fees previously remitted. An application or other request that is canceled under this section may be reinstated upon the applicant's request if such request, together with any fees owed, are received by the department within sixty days of the notification of cancellation and if the applicant or requestor demonstrates that extenuating circumstances prevented a timely response to the department's notifications.

NEW SECTION. Sec. 8. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.