Z-0783

AN ACT Relating to water well construction and well driller licensing; amending RCW 18.104.020, 18.104.030, 18.104.040, 18.104.050, 18.104.070, 18.104.100, 43.21B.110, 18.104.150, 89.16.055, 18.104.155, and 18.104.180; adding new sections to chapter 18.104 RCW; creating new sections; and prescribing penalties.

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

NEW SECTION. Sec. 1. The legislature finds that the public health and the environment are threatened by inadequately regulated water well construction and decommissioning. The purpose of this act is to enhance the authority of the department of ecology in administering the water well construction program.

Sec. 2. RCW 18.104.020 and 1983 1st ex.s. c 27 s 14 are each amended to read as follows:

The definitions set forth in this section apply throughout this chapter, unless a different meaning is plainly required by the context.

(1) "Abandoned well" means a well that is unused, unmaintained, and, in the opinion of the department, is not intended for future use.

(2) "Constructing a well" or "construct a well" means and includes boring, digging, drilling, or excavating and installing casing, sheeting, lining, or well screens, whether in the installation of a new water well or in the alteration of an existing water well.

((~~(2)~~)) (3) "Decommission" means to fill or plug a water well so that it will not produce water, serve as a channel for movement of water or pollution, or allow the entry of pollutants into the well or aquifers.

(4) "Department" means the department of ecology.

((~~(3)~~)) (5) "Dewatering well" means a cased or lined excavation or boring that is intended to withdraw or divert ground water for the purpose of facilitating construction, restoration of water quality, or other purposes not directly associated with making beneficial use of the water being removed from an underground formation.

(6) "Director" means the director of the department of ecology.

((~~(4)~~)) (7) "Ground water" means and includes ground waters as defined in RCW 90.44.035, as now or hereafter amended.

(((5))) (8) "Monitoring well" means a water well designed to obtain a representative ground water sample or designed to measure the water level elevation.

(9) "Observation well" means a water well designed to measure the depth to the water level elevation.

(10) "Operator" means any person, other than a person exempted by RCW 18.104.180, who is employed by a water well contractor for the control and supervision of the construction of a water well or for the operation of water well construction equipment.

((~~(6)~~)) (11) "Pollution" and "contamination" have the meanings provided in RCW 90.48.020.

(12) "Resource protection well" means a water well used to determine the existence or migration of pollutants within an underground formation. A resource protection well may also be a monitoring well, observation well, piezometer, spill response well, or other cased boring.

(13) "Water supply well" means a water well that is intended to withdraw, dewater, or recharge ground water.

(14) "Water well" means and includes any excavation that is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed when the intended use of the well is for the location, diversion, artificial recharge, observation, monitoring, protection, or withdrawal of ground water. "Water well" does not mean an excavation made for the purpose of obtaining or prospecting for oil, natural gas, minerals, or products of mining, or quarrying, or for inserting media to repressure oil or natural gas bearing formations, or for storing petroleum, natural gas, or other products.

((~~(7)~~)) (15) "Water well contractor" means any person, firm, partnership, copartnership, corporation, association, or other entity engaged in the business of constructing water wells.

Sec. 3. RCW 18.104.030 and 1971 ex.s. c 212 s 3 are each amended to read as follows:

It is unlawful:

(1) For any ((~~water well contractor~~)) person to construct, alter, or decommission a water well ((~~for compensation~~)) without complying with the licensing provisions of this chapter;

(2) For any ((~~water well contractor~~)) person to construct, alter, or decommission a water well ((~~for compensation~~)) without complying with the rules ((~~and regulations~~)) for water well construction adopted pursuant to this chapter;

(3) For any water well ((~~construction operator to supervise the construction of a water well without having an operators license as provided in this chapter~~)) drilling rig to be operated without a licensed operator at the site except as provided for in the well drilling apprenticeship program established by the department;

(4) For a person to commence construction of a water well until the notice of intent has been filed in accordance with RCW 18.104.048;

(5) For a prospective water well owner to have a water supply well drilled without first obtaining a water right permit, if a permit is required;

(6) For a person to tamper with or remove a water well identification tag except during well alteration. The water well contractor shall replace the identification tag if it is removed during well alteration. If nothing remains to which a replacement tag can be affixed the contractor shall inform the department of these circumstances.

Sec. 4. RCW 18.104.040 and 1971 ex.s. c 212 s 4 are each amended to read as follows:

The department shall have the power:

(1) To issue, deny, suspend or revoke licenses pursuant to the provisions of this chapter;

(2) To enter upon lands for the purpose of inspecting, sampling, taking measurements from, or tagging any water well, drilled or being drilled, at all reasonable times;

(3) To call upon or receive professional or technical advice from any public agency or any person;

(4) To make such rules ((~~and regulations~~)) governing licensing ((~~hereunder~~)) and water well construction as may be appropriate to carry out the purposes of this chapter. Without limiting the generality of the foregoing, the department may in cooperation with the department of ((~~social and~~)) health ((~~services~~)) make rules ((~~and regulations~~)) regarding:

(a) Standards for the construction and maintenance of water wells and their casings;

(b) Methods of capping, sealing ((~~artesian~~)), and decommissioning water wells ((~~and water wells to be abandoned or which may contaminate other~~)) to prevent contamination of ground water resources and to protect public health and safety;

(c) Methods of artificial recharge of ground water bodies and of construction of water wells which insure separation of individual water bearing formations;

(d) The manner of conducting and the content of examinations required to be taken by applicants for license hereunder;

(e) Reporting requirements of water well contractors;

(f) Limitations on water well construction in areas identified by the department as requiring intensive control of withdrawals in the interests of sound management of the ground water resource;

(5) To require the water well contractor and the property owner to take whatever measures are necessary to guard against waste and contamination of the ground water resources;

(6) To require a water well owner to decommission any water well that is (a) abandoned, (b) unusable, (c) not intended for future use, (d) in such disrepair that its continued use is impractical, (e) is an environmental, safety, or public health hazard, or (f) for which the water right has been relinquished as provided in chapter 90.14 RCW;

(7) To require a water well contractor to alter or, if necessary, decommission a water well that was not constructed in accordance with the standards in effect at the time the well was constructed. Proper maintenance of a water well is the responsibility of the well owner;

(8) To require a water well owner to securely cap any inactive water well or seal from contamination any active water well;

(9) To place or require the placement of a well identification tag on existing water wells;

(10) To require water well drillers to place a well identification tag on new water wells that they construct and on existing water wells on which they perform work.

Sec. 5. RCW 18.104.050 and 1971 ex.s. c 212 s 5 are each amended to read as follows:

(1) In order to enable the state to protect the welfare, health, and safety of its citizens, any water well contractor shall furnish a water well report to the director within thirty days after the completion of the construction or alteration by him of any water well. The director, by regulation, shall prescribe the form of the report and the information to be contained therein.

(2) Water well contractors shall remit a well drilling fee to the department with the water well report required in subsection (1) of this section as follows:

(a) The fee for a new water supply well serving a single residence, or providing water for noncommercial stockwatering, or both, is one hundred dollars.

(b) The fee for other new water supply wells is two hundred dollars.

(c) The fee for new resource protection wells is fifty dollars per well except that the total fees for a retail petroleum fuels marketing site shall not exceed one hundred fifty dollars.

(d) The fee for water well decommissioning is fifty dollars.

(e) The fee for dewatering wells is one hundred dollars per dewatering project except that the fee for a dewatering project with more than twenty wells is two hundred dollars.

Sec. 6. RCW 18.104.070 and 1987 c 394 s 2 are each amended to read as follows:

((~~Except as provided in RCW 18.104.180,~~)) (1) No person may contract to engage in the construction, alteration, or decommissioning of a water supply well ((~~and no person may~~)) or act as an operator for that purpose without first obtaining a water supply well construction license by applying to the department.

(2) A person shall be qualified to receive a water supply well construction operators license if ((he)) the person:

((~~(1)~~)) (a) Has made application ((~~therefor~~)) to the department and has paid to the department an application fee of ((~~twenty-five~~)) two hundred dollars. The fee for a water supply well drilling endorsement for a resource protection well drilling license is fifty dollars; and

((~~(2)~~)) (b) Has at least two years of water supply well drilling field experience ((~~with a licensed well driller or~~)); or has one year of water supply well drilling field experience, and an equivalent of at least one school year of qualifying educational training that satisfies the criteria established by department rule; or has completed an apprenticeship program that satisfies the criteria established by department rule followed by one year of water supply well drilling field experience; and

((~~(3)~~)) (c) Has passed a written examination as provided for in RCW 18.104.080((: PROVIDED, That should any applicant establish his illiteracy to the satisfaction of the department, such applicant shall be entitled to an oral examination in lieu of the written examination authorized herein)).

(3) An operator licensed under this section may acquire a license endorsement for drilling resource protection, monitoring, or observation wells by complying with the provisions of section 7 of this act.

NEW SECTION. Sec. 7. A new section is added to chapter 18.104 RCW to read as follows:

(1) No person may contract to engage in the construction, alteration, or decommissioning of a resource protection well or act as an operator for that purpose without first obtaining a resource protection well construction license by applying to the department.

(2) A person shall be qualified to receive a resource protection well construction operators license if the person:

(a) Has made license application to the department and has paid to the department an application fee of two hundred dollars; and

(b) Has at least two years of resource protection well drilling field experience; or has one year of resource protection well drilling field experience and an equivalent of at least one school year of qualifying educational training that satisfies the criteria established by department rule; or has completed an apprenticeship program that satisfies the criteria established by department rule followed by one year of resource protection well drilling field experience; and

(3) The fee for a resource protection, monitoring, and observation well drilling endorsement for a water supply well drilling license is fifty dollars.

(4) An operator licensed under this section may acquire a license endorsement for water supply well drilling by complying with the provisions of RCW 18.104.070.

Sec. 8. RCW 18.104.100 and 1971 ex.s. c 212 s 10 are each amended to read as follows:

(1) The term for the effectiveness of any license issued pursuant to this chapter shall be ((~~one~~)) two years((~~, commencing on the date the license is issued~~)). ((~~Every~~)) A license shall be renewed ((~~annually~~)) upon payment of a renewal fee of ((~~ten~~)) one hundred dollars and completion of an approved eight hour refresher course focusing on new legal requirements and well drilling technology. The fee for renewal of a license and an endorsement is one hundred twenty-five dollars.

(2) The license shall expire at the end of its effective term if a licensee fails to submit an application for renewal, ((~~together with~~)) fails to remit the renewal fee, ((before the end of the effective term of his license, his license shall be suspended for thirty days on notice by the director. If his renewal fee is paid prior to the end of said suspension period, the suspension shall automatically terminate. If during the period of suspension renewal is not completed, his license shall be revoked: PROVIDED, That the director shall give the licensee ten days notice prior to the revocation of any license for failure to renew)) or fails to complete the required eight-hour refresher course.

A person whose license ((~~is revoked under this section~~)) expires and who thereafter desires to engage in the ((~~supervision of~~)) construction of water wells must make application for a new license ((~~and~~)), pay ((~~twenty-five dollars~~)) the same fee that applies for a new license, and meet the requirements for a new license as provided in RCW 18.104.070 and section 7 of this act. The department may waive the testing requirement for formerly licensed operators.

(3) The department may refuse to renew a license if the licensee has not complied with a regulatory order issued by the department or has not paid a civil penalty levied in accordance with this chapter, unless the order or penalty is under appeal.

(4) The department may issue a temporary license to enable a former licensee to comply with an order to correct problems with a water well.

NEW SECTION. Sec. 9. A new section is added to chapter 18.104 RCW to read as follows:

(1) The department may, when requested by the governing body of a county, city, or town, delegate to the governing body the authority to administer portions of the water well construction program if the department determines the governing body has:

(a) The resources, expertise, and capability to administer the program as described in a written proposal submitted to the department; and

(b) Indicated an intention to administer the program in accordance with the provisions of this chapter and the rules adopted by the department pertaining to minimum standards for construction and maintenance of water wells.

(2) The authority to license water well contractors, renew licenses, receive state notices of intent, and well reports, and receive state well drilling fees as provided by this chapter shall be exercised solely by the department. At their discretion, local governments that have been delegated authority under this section may adopt water well construction standards that are more stringent than the state's construction standards. These local standards must be approved by the director of the department prior to adoption.

(3) The specific authorities delegated to a local governing body must be clearly stated in a memorandum of agreement between the department and the local governing body. A memorandum of agreement effecting the delegation shall be limited in term to four years and shall be subject to withdrawal of the delegation in accordance with subsection (5) of this section. Prior to the expiration of a memorandum of agreement, the department and the local governing body shall jointly review the administration of the program by the local governing body to identify any deficiencies. A new memorandum of agreement continuing the delegation may be adopted when an existing memorandum of agreement expires.

(4) Any delegation authorized under this section shall take effect on the effective date of an implementing ordinance. Ordinances may not be adopted without prior approval of the department.

(5) Any portion of the water well construction program delegated under the provisions of this chapter shall be administered in accordance with this chapter, other applicable laws, the rules of the department implementing this chapter, and local ordinances. Whenever the department determines, after a public hearing, that a county, city, or town is not administering the program in such manner, it shall notify the local government and, if corrective action is not taken within a reasonable time, not to exceed ninety days, the department shall withdraw the delegation by issuance of an order.

(6) The department shall promptly furnish the local governing body with a copy of each water well report received in the area covered by a delegated program.

(7) The department and local governing bodies that are delegated authority over portions of the water well construction program shall coordinate to reduce duplication of effort, and shall share all appropriate information including technical reports, legal actions, well reports, and any needed or proposed changes in water well construction and maintenance standards.

(8) Any person aggrieved by a ruling under a delegated program may obtain review of the program before the pollution control hearings board in the same manner as review is obtained of rulings of the department under RCW 18.104.130.

Sec. 10. RCW 43.21B.110 and 1989 c 175 s 102 are each amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, local governing bodies delegated authority to administer portions of the water well construction program pursuant to section 9 of this act, or local health departments:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 90.03.600, 90.48.144, and 90.48.350.

(b) Orders issued pursuant to section 9 of this act, RCW 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 90.14.130, and 90.48.120.

(c) The issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, or the modification of the conditions or the terms of a waste disposal permit.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(e) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(f) Decisions of local governing bodies delegated authority to administer portions of the water well construction program as provided for in section 9 of this act.

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

(c) Proceedings by the department relating to general adjudications of water rights pursuant to chapter 90.03 or 90.44 RCW.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules ((~~and regulations~~)) adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

NEW SECTION. Sec. 11. The department shall initiate a pilot project for identifying and tagging existing water wells. The pilot project must, if possible, be located within an existing designated ground water management area or ground water subarea established under chapter 90.44 RCW. The purpose of the pilot project is to evaluate the cost of a state-wide well identification effort. The department shall prepare a report of its evaluation of the pilot project and the estimated level of effort and cost to locate, identify, and tag all water wells in the state.

Sec. 12. RCW 18.104.150 and 1971 ex.s. c 212 s 15 are each amended to read as follows:

((~~All receipts realized in the administration of this chapter shall be paid into the general fund.~~))

(1) All water well drilling and license fees paid under provisions of this chapter shall be credited by the state treasurer to the reclamation revolving account established by chapter 89.16 RCW. Subject to legislative appropriation, the funds collected under this chapter shall be allocated and expended by the director for the salary, benefits, office space, equipment, data collection and management, and indirect costs associated with water well construction, water well driller education and licensing, and water well identification.

(2) The department may contract with local governing bodies delegated portions of the water well construction program to provide funds from the reclamation revolving account to assist in supporting water well inspectors hired by the local governing body. Funds provided to a local governing body from the reclamation revolving account shall not exceed the revenues generated from well drilling fees from the area in which authority is delegated to the local governing body.

Sec. 13. RCW 89.16.055 and 1981 c 216 s 1 are each amended to read as follows:

In addition to the powers provided in RCW 89.16.050, the department of ecology is authorized and empowered to:

(1) Conduct surveys, studies, investigations, and water right examinations for proposed reclamation projects or the rehabilitation of existing reclamation projects that may be funded fully or partially from the receipts of the sale of bonds issued by the state of Washington.

(2) Support the preparation for and administration of proceedings, provided in RCW 90.03.110 or 90.44.220, or both, pertaining to river systems or other water bodies that are associated with existing or proposed reclamation projects.

(3) Conduct a regulatory program for water well construction as provided in chapter 18.104 RCW.

Funds of the account established by RCW 89.16.020 may, as appropriated by the legislature, be used in relation to the powers provided in this section, notwithstanding any other provisions of chapter 89.16 RCW that may be to the contrary.

Sec. 14. RCW 18.104.155 and 1987 c 394 s 1 are each amended to read as follows:

(1) The department of ecology may levy a civil penalty of up to ((~~one hundred~~)) ten thousand dollars per day for violation of this chapter or rules or orders of the department adopted or issued pursuant to it.

(2) The department shall adopt rules establishing criteria for the determination of appropriate penalty levels for various classes of violations. These criteria shall take into account the seriousness of a violation, including the threat posed to public health, damage or potential damage to public resources, damage or potential damage to the property interests of other individuals, and the recurrence of the violation. Until these rules are in effect, the department shall be guided by these criteria in determining the amount of civil penalty to levy, but shall not levy a civil penalty provided for in this section in excess of one thousand dollars.

(3) Procedures of RCW 90.48.144 shall be applicable to all phases of levying of such a penalty as well as review and appeal of them.

(4) For each notice regarding a violation, resulting from the improper construction of a well, that is sent to a water well contractor or water well construction operator, the department shall send a copy of the notice for information purposes only to the owner of the land on which the improperly constructed well is located.

Sec. 15. RCW 18.104.180 and 1971 ex.s. c 212 s 18 are each amended to read as follows:

No license hereunder shall be required of((:

(1) Any individual who personally drills a well on land which is owned or leased by him or in which he has a beneficial interest as a contract purchaser and is used by the individual for farm or noncommercial domestic use only.

~~(2) Any~~)) an individual who performs labor or services for a water well contractor in connection with the drilling of a water well at the direction and under the supervision and control of a licensed operator who is present at the drilling site.