BP BHEAD INT H

AN ACT Relating to water rights; amending RCW 43.27A.190; and adding a new section to chapter 43.27A RCW.

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

NEW SECTION. Sec. 1. A new section is added to chapter 43.27A RCW to read as follows:

(1) The legislature recognizes the importance of due process concerns associated with the issuance of orders by the department of ecology regulating, as between holders of water rights, the withdrawal or use of water under such rights. Therefore, the legislature directs that the state's chief legal officer, the attorney general, design a process short of a general adjudication process to be used by the department of ecology to issue orders for this purpose.

(2) The attorney general shall design, in detail, a process other than a general adjudication process to be used by the department of ecology for: (a) Making determinations regarding the existence and extent of a water right and determinations as to whether the use of a water right or water right permit is impairing or interfering with the use of another more senior water right; and (b) based on those determinations, issuing regulatory orders to protect senior water rights from impairment or interference by users of junior water rights. The process designed by the attorney general shall ensure that the due process rights of all water right holders and holders of water right permits that would be affected by such a determination and order are protected. The attorney general shall provide the process to the department of ecology in the form of a written proposal. The department shall adopt the proposed process by rule. The department may not alter, delete, or create any aspect of the process without first obtaining the express written approval of the attorney general. Once the department has adopted such rules, the department may not amend them without first obtaining the express written approval of the attorney general.

(3) The department of ecology may use the process adopted in subsection (2) of this section to make the determinations and to issue the orders described in this section. The department may not use any other process for making such determinations or for issuing such orders. A general adjudication of water rights is not necessary for the exercise of the department's authorities under this section. Any appeal of a determination made or order issued by the department under this section shall be made to the superior court in the manner prescribed by chapter 34.05 RCW for the appeal of an order. In such an appeal, the superior court's review shall be de novo. Pending a judicial decision holding otherwise, a determination made by the department under this section shall be considered to be tentative.

(4) This section does not apply to any tentative determinations or determinations made by the department of ecology in considering applications for water right permits.

Sec. 2. RCW 43.27A.190 and 1987 c 109 s 11 are each amended to read as follows:

Notwithstanding and in addition to any other powers granted to the department of ecology, whenever it appears to the department that a person is violating or is about to violate any of the provisions of the following:

(1) Chapter 90.03 RCW; or

(2) Chapter 90.44 RCW; or

(3) Chapter 86.16 RCW; or

(4) Chapter 43.37 RCW; or

(5) Chapter 43.27A RCW; or

(6) Any other law relating to water resources administered by the department; or

(7) A rule or regulation adopted, or a directive or order issued by the department relating to subsections (1) through (6) of this section; the department may cause a written regulatory order to be served upon said person either personally, or by registered or certified mail delivered to addressee only with return receipt requested and acknowledged by him. The order shall specify the provision of the statute, rule, regulation, directive or order alleged to be or about to be violated, and the facts upon which the conclusion of violating or potential violation is based, and shall order the act constituting the violation or the potential violation to cease and desist or, in appropriate cases, shall order necessary corrective action to be taken with regard to such acts within a specific and reasonable time. The regulation of a headgate or controlling works as provided in RCW 90.03.070, by a watermaster, stream patrolman, or other person so authorized by the department shall constitute a regulatory order within the meaning of this section. A regulatory order issued hereunder shall become effective immediately upon receipt by the person to whom the order is directed, except for regulations under RCW 90.03.070 which shall become effective when a written notice is attached as provided therein. Except as provided in section 1 of this act, any person aggrieved by such order may appeal the order pursuant to RCW 43.21B.310.