SENATE BILL REPORT

                  ESHB 1774

                     As of March 17, 1995

Title:  An act relating to the water‑related actions of the department of ecology.

Brief Description:  Altering appeal procedures for water‑related actions of the department of ecology.

Sponsors:  House Committee on Agriculture & Ecology (originally sponsored by Representatives Chandler, Mastin, Basich and Honeyford).

Brief History:

Committee Activity:  Water Policy:  3/20/95.

SENATE SELECT COMMITTEE ON WATER POLICY

Staff:  David Danner (786-7784)

Background:  The Office of Administrative Hearings (OAH) is responsible for conducting impartial adjudicative proceedings for most state agencies in accordance with the Administrative Procedure Act.  A person who wishes to appeal the decision of a state agency that uses OAH to preside over appeals of its decisions is entitled to a hearing before an administrative law judge (ALJ). 

The decision of the ALJ must contain findings of facts and conclusions of law.  In most instances, the decision by the ALJ is considered to be an initial decision.  The agency or a party to the proceedings may request that the ALJ's decision be reviewed by the agency.  The agency may adopt or reverse the decision of the ALJ in making its final decision.   A party to the proceedings, not including the agency, may appeal the agency's final decision to superior court.  An agency may, however, authorize OAH to make the final decision for the agency.  The decision of the ALJ under these circumstances is directly appealable to superior court instead of being appealable back to the agency. 

The Pollution Control Hearings Board (PCHB) presides over certain appeals of decisions made by the Department of Ecology (DOE), Office of Marine Safety, air pollution control boards or authorities, and local health departments.  The PCHB consists of three members appointed by the Governor and confirmed by the Senate.  These members must have experience or training in matters pertaining to the environment, and at least one member must be a lawyer admitted to practice law in this state.

Proceedings before the PCHB are conducted in accordance with procedures adopted by the PCHB.  The PCHB must make findings of fact and conclusions of law in each of its decisions.  Decisions of the PCHB may be appealed to superior court by any of the parties.

Certain water-related actions by the DOE are appealable to the PCHB instead of to OAH.

Summary of Bill:  Appeals of certain water-related agency actions by the DOE are appealable to superior court or to an ALJ assigned by the OAH instead of being appealed to the PCHB.  Appeals to superior court are de novo and are filed in the superior court directly and are immediately affected by the decision.  An appeal pertaining to the relinquishment of a water right must be made to superior court.

DOE must commence an adjudicatory proceeding pursuant to the provisions of the Administrative Procedure Act within 30 days after receiving a request for an administrative hearing for a water-related agency action.  The ALJ who conducts the hearing also makes the final decision.  The decision of the ALJ is not appealable back to the DOE, but may be appealed by any of the parties to the superior court in the county that is directly and immediately affected by the decision. 

The Chief Administrative Law Judge of the OAH must develop procedural rules for conducting appeals of water-related agency actions.  The procedures must ensure that the hearings are conducted in the general area where the petitioner resides, or provide for the hearings to be conducted by telephone.

"Water-related agency actions" by DOE include: (1) decisions to grant or deny permits or certificates for a right to the beneficial use of water, or to amend, change, or transfer such a right; (2) decisions to enforce the conditions of a permit for, or right to, the beneficial use of water or to require any person to discontinue the use of water; and (3) decisions to establish a minimum flow or level for water, or to reserve water for such a minimum flow or level.

Appropriation:  None.

Fiscal Note:  Available.

Effective Date:  Ninety days after adjournment of session in which bill is passed.