H-4646

AN ACT Relating to water resources; amending RCW 43.21A.064 and 90.03.350; reenacting and amending RCW 86.16.035; and creating a new section.

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

NEW SECTION. Sec. 1. (1) The legislature acknowledges that the federal government regulates the safety of hydroelectric projects subject to the federal power act.

(2) The legislature finds that:

(a) Applicants for hydropower licenses and holders of hydropower licenses under the federal power act must demonstrate compliance with all applicable federal dam safety laws and regulations.

(b) The federal energy regulatory commission has adopted regulations, issued orders, developed policies and requirements, and established engineering guidelines for the safety of water power projects and project works.

(c) The federal energy regulatory commission conducts thorough inspections of federally licensed projects that assure that these projects remain in compliance with applicable federal safety laws and regulations.

(d) State regulation and inspection of federally licensed projects would create unnecessary bureaucracy, would add to the cost of energy that must be paid by the citizens of the state, and would be inconsistent with state policy to reduce the burden of regulation and economic development.

(3) The legislature declares that state efforts to regulate and inspect federally licensed hydropower projects would merely duplicate federal regulation and inspection, could lead to conflicts between federal and state regulatory actions, and would not provide additional safety for the citizens of the state.

Sec. 2. RCW 43.21A.064 and 1977 c 75 s 46 are each amended to read as follows:

The director of the department of ecology shall have the following powers and duties:

(1) The supervision of public waters within the state and their appropriation, diversion, and use, and of the various officers connected therewith;

(2)(a) Except as provided in (b) of this subsection, insofar as may be necessary to assure safety to life or property, ((he)) the director shall inspect the construction of all dams, canals, ditches, irrigation systems, hydraulic power plants, and all other works, systems, and plants pertaining to the use of water, and ((he)) the director may require such necessary changes in the construction or maintenance of said works, to be made from time to time, as will reasonably secure safety to life and property;

(b) The provisions of (a) of this subsection shall not apply to any dam, hydraulic power plant, reservoir, project, or other work, system, or plant licensed under the federal power act, except for those dams or controlling works which are now or hereafter made subject to state jurisdiction by an act of Congress or by agreement between the state and the federal energy regulatory commission or its successor, as authorized under the federal power act. Nothing in this subsection shall be construed to prohibit the department from reviewing or commenting upon reports, plans, or specifications that are submitted to the federal energy regulatory commission or its successor, or to accompany the commission on its inspections of dams or controlling works licensed under the federal power act;

(3) ((He)) The director shall regulate and control the diversion of water in accordance with the rights thereto;

(4) ((He)) The director shall determine the discharge of streams and springs and other sources of water supply, and the capacities of lakes and of reservoirs whose waters are being or may be utilized for beneficial purposes;

(5) ((He)) The director shall keep such records as may be necessary for the recording of the financial transactions and statistical data thereof, and shall procure all necessary documents, forms, and blanks. ((He)) The director shall keep a seal of the office, and all certificates by ((~~him~~)) the director covering any of ((~~his~~)) the director's acts or the acts of ((~~his~~)) the director's office, or the records and files of ((~~his~~)) the director's office, under such seal, shall be taken as evidence thereof in all courts;

(6) ((He)) The director shall render when required by the governor, a full written report of the work of ((~~his~~)) the director's office with such recommendations for legislation as ((he)) the director may deem advisable for the better control and development of the water resources of the state;

(7) The director and duly authorized deputies may administer oaths;

(8) ((He)) The director shall establish and ((~~promulgate~~)) adopt rules governing the administration of chapter 90.03 RCW;

(9) ((He)) The director shall perform such other duties as may be prescribed by law.

Sec. 3. RCW 86.16.035 and 1987 c 523 s 9 and 1987 c 109 s 53 are each reenacted and amended to read as follows:

Except as provided in RCW 90.03.350(2), the department of ecology shall have supervision and control over all dams and obstructions in streams, and may make reasonable regulations with respect thereto concerning the flow of water which ((he)) the director deems necessary for the protection to life and property below such works from flood waters.

Sec. 4. RCW 90.03.350 and 1987 c 109 s 91 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, any person, corporation or association intending to construct or modify any dam or controlling works for the storage of ten acre feet or more of water, shall before beginning said construction or modification, submit plans and specifications of the same to the department for examination and approval as to its safety. Such plans and specifications shall be submitted in duplicate, one copy of which shall be retained as a public record, by the department, and the other returned with its approval or rejection endorsed thereon. No such dam or controlling works shall be constructed or modified until the same or any modification thereof shall have been approved as to its safety by the department. Any such dam or controlling works constructed or modified in any manner other than in accordance with plans and specifications approved by the department or which shall not be maintained in accordance with the order of the department shall be presumed to be a public nuisance and may be abated in the manner provided by law, and it shall be the duty of the attorney general or prosecuting attorney of the county wherein such dam or controlling works, or the major portion thereof, is situated to institute abatement proceedings against the owner or owners of such dam or controlling works, whenever he or she is requested to do so by the department.

(2) This section shall not apply to any dam, hydraulic power plant, reservoir, project, or other work, system, or plant licensed under the federal power act, except for those dams or controlling works which are now or hereafter made subject to state jurisdiction by an act of Congress or by agreement between the state and the federal energy regulatory commission or its successor, as authorized under the federal power act. Nothing in this subsection shall be construed to prohibit the department from reviewing or commenting upon reports, plans, or specifications that are submitted to the federal energy regulatory commission or its successor, or to accompany the commission on its inspections of dams or controlling works licensed under the federal power act.