H-2042

AN ACT Relating to the department of ecology's fees and penalties concerning water rights; amending RCW 90.03.471 and 90.03.600; adding a new section to chapter 90.03 RCW; creating new sections; repealing RCW 90.03.470; prescribing penalties; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1. (1) The legislature finds that:

(a) Significant economic value is conferred upon recipients of water rights;

(b) Water rights are issued in perpetuity and confer benefits upon the water right holder for as long as such rights are used for beneficial purposes;

(c) Because of growth in the state, the department of ecology faces a large increase in the number of water right applications;

(d) The fees charged for water right applications, permits, certificates, and related services do not cover the administrative costs of the water rights program and do not reflect the significant economic value conferred upon the recipients of water rights;

(e) Violations of water resource laws, rules, and orders result in damage to state water and to the holders of valid water rights; and

(f) The maximum civil penalties that can be levied for water rights violations are insufficient to discourage such violations and are not cost-effective for the state to impose.

(2) The purposes of this act are to:

(a) Establish fees for water rights and related services that reflect the cost of administering the water resources program; and

(b) Increase the maximum civil penalties applicable to violations of state water laws, rules, and orders.

NEW SECTION. Sec. 2. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department shall adopt rules, following the procedures of chapter 34.05 RCW, establishing a schedule of fees for performing certain functions of the water resources program. The department shall collect in advance the applicable fee for each of the following actions:

(a) Accepting and examining an application for a permit to appropriate public water;

(b) Accepting and examining an application for change or transfer of a water right;

(c) Examining and preparing for the issuance of a water right permit or an authorization to change or transfer a water right;

(d) Preparing, filing, and recording certificates to appropriate water or other water rights instruments;

(e) Copying any recorded document;

(f) Certifying any copies, documents, records, or maps;

(g) Granting an extension of time for any phase of the construction schedule under an authorization to appropriate public water;

(h) Inspection of any hydraulic works to ensure safety to life and property;

(i) Examination of plans and specifications of dams, reservoirs, or other works for the storage of water;

(j) Recording of an assignment of either a permit to appropriate water or of an application for such a permit;

(k) Filing and recording a protest against granting any application; and

(l) Certification of adequate water supply under rules adopted by the department as required by RCW 19.27.097.

(2) The fees established under this section shall be based on recovering the actual cost to the department of taking the actions in subsection (1) of this section. The department may classify water uses by type, quantity, and complexity and may compute its average costs in determining fees for applications, permits, and certificates of water right for each classification. Fees shall be adjusted biennially to match appropriations for the water resources program. Fees may not be used to cover costs of enforcement of the water resources program.

(3) A surcharge of twenty-five percent shall be assessed on the application and permit fees of applicants who have used public water without the prior approval of the department. Prior approval includes a valid water right claim, a permit to appropriate public waters, or a temporary permit issued by the department.

(4) The fees established under this section shall apply to all applications and requests for any pertinent actions pending before the water resources program of the department at the time the rules establishing the fees become effective under chapter 34.05 RCW: PROVIDED, That no fees established under subsection (1) of this section shall apply to any application that is completed as provided in RCW 90.03.260, 90.03.270, and 90.44.060 and is submitted to the department before January 1, 1992. Any fee already paid for an application or other pertinent requested action shall be credited to the amount owed on the fees established by rule.

(5) The department shall notify, by certified mail with return receipt requested, any person with an action pending before the department if that action is affected by increased fees. Any 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 due to an increased fee shall, within one hundred twenty 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 one hundred twenty 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 subsection 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 requester demonstrates that extenuating circumstances prevented a timely response to the department's notifications.

(6) The department shall convene and consult with a water right fee committee to review proposed fees. The water right fee committee shall consist of representatives from the department, appropriate state agencies and local governments, and interested parties, including but not limited to utilities, and agricultural, environmental, and business interests.

(7) The department shall submit a report to the appropriate committees of the legislature by November of each even-numbered year showing detailed information on fees collected, actual expenses incurred, anticipated expenses, and the actual costs of processing representative water right applications for the current and next two fiscal years.

(8) The department shall provide each applicant with a report regarding the status of the applicant's permit no later than nine months following submittal of an application that is completed as provided in RCW 90.03.260, 90.03.270, and 90.44.060. The department shall make a good faith effort to expedite requests made under this section.

Sec. 3. 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~~)) and section 2 of this act, 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. Not more than eighteen percent of the fees collected under section 2 of this act may be used to cover administrative overhead costs.

Sec. 4. RCW 90.03.600 and 1987 c 109 s 157 are each amended to read as follows:

((~~The power is granted to the~~)) To ensure protection of state waters and related resources and to prevent impairment of water rights, the department ((~~of ecology to~~)) may levy civil penalties ((~~of up to one hundred dollars per day~~)) for violation of any of the provisions of this chapter and chapters 43.83B, 90.22, ((~~and~~)) 90.44, and 90.54 RCW, and rules, permits, ((~~and similar documents~~)) and regulatory orders of the department of ecology adopted or issued pursuant to such chapters. ((~~The procedures of RCW 90.48.144 shall be applicable to all phases of the levying of a penalty as well as review and appeal of the same.~~))

The department shall adopt rules to determine penalties. The department shall consider the seriousness of a violation, including the threat to public health, damage or potential damage to public resources or property, and the recurrence of violations.

(1) Penalties for minor violations shall be greater than one hundred dollars, but shall not exceed five hundred dollars. Minor violations are those violations that do not seriously threaten public welfare, health, safety, public and private property, or the environment, and include but are not limited to:

(a) Failure to comply with the quantity, purpose, place or time of use, or acreage requirements of a water right permit, certificate, or other water right conditions; and

(b) Failure to install required measuring devices and provide information requested by the department as to quantity of use.

(2) Penalties for significant violations shall be greater than five hundred dollars, but shall not exceed five thousand dollars. Significant violations are those violations that seriously threaten public welfare, health, safety, public and private property, or the environment, and include but are not limited to:

(a) Construction of diversion, withdrawal, or storage works without a permit from the department;

(b) Diversion, withdrawal, or use of water without a permit from the department;

(c) Violation of an order of the department to cease diversion or withdrawal to protect senior water rights or senior instream flows;

(d) Continuous or recurring violation of a departmental order or notice of violation;

(e) Repeated or continuous minor violations; and

(f) Intentionally providing false or misleading information on an application, proof of appropriation, or water use report.

(3) The procedures of RCW 90.48.144 shall be applicable to all procedures related to the levying, review, and appeal of penalties.

NEW SECTION. Sec. 5. RCW 90.03.470 and 1987 c 109 s 98, 1965 ex.s. c 160 s 1, 1951 c 57 s 5, 1929 c 122 s 8, 1925 ex.s. c 161 s 2, & 1917 c 117 s 44 are each repealed.

NEW SECTION. Sec. 6. 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, except for section 5 of this act which shall take effect January 1, 1992.

NEW SECTION. Sec. 7. The fees established in RCW 90.03.470 shall be superseded by rules adopted by the department under section 2 of this act.

NEW SECTION. Sec. 8. This act shall not be construed as affecting any existing right acquired or liability or obligation incurred under the sections amended or repealed in this act or under any rule or order adopted under those sections, nor as affecting any proceeding instituted under those sections.