BP BHEAD INT H

AN ACT Relating to water transfers and changes; amending RCW 90.03.380, 90.44.100, 90.03.290, 90.44.445, 34.05.425, 34.05.461, 34.05.530, 34.05.534, 34.12.040, 43.21B.130, 43.21B.110, 43.21B.240, 43.21B.310, 34.05.419, 34.05.514, and 43.21B.320; adding a new section to chapter 43.21B RCW; adding a new section to chapter 90.03 RCW; and adding a new section to chapter 90.44 RCW.

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

Sec. 1. RCW 90.03.380 and 1991 c 347 s 15 are each amended to read as follows:

(1) The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to the land or place upon which the same is used: PROVIDED, HOWEVER, That ((~~said~~)) the right may be transferred to another or to others and become appurtenant to any other land or place of use without loss of priority of right theretofore established if such change can be made without detriment or injury to existing rights. The point of diversion of water for beneficial use or the purpose of use may be changed, if such change can be made without detriment or injury to existing rights. Before any transfer of such right to use water or change of the point of diversion of water or change of purpose of use can be made, any person having an interest in the transfer or change, shall file a written application therefor with the department, and ((~~said~~)) the application shall not be granted until notice of ((~~said~~)) the application ((~~shall be~~)) is published as provided in RCW 90.03.280. If it shall appear that such transfer or such change may be made without injury or detriment to existing rights, the department shall issue to the applicant a certificate in duplicate granting the right for such transfer or for such change of point of diversion or of use. The certificate so issued shall be filed and be made a record with the department and the duplicate certificate issued to the applicant may be filed with the county auditor in like manner and with the same effect as provided in the original certificate or permit to divert water.

(2) If an application for change proposes to transfer water rights from one irrigation district to another, the department shall, before publication of notice, receive concurrence from each of the irrigation districts that such transfer or change will not adversely affect the ability to deliver water to other landowners or impair the financial integrity of either of the districts.

(3) A change in place of use by an individual water user or users of water provided by an irrigation district need only receive approval for the change from the board of directors of the district if the use of water continues within the irrigation district.

(4) If a portion of the water governed by a water right is made surplus to the beneficial uses exercised under the right through the implementation of practices or technologies which are more water use efficient than those under which the right was perfected or through a change in the crops grown under the water right, the right to use the surplus water may be changed to use on other lands or at other places or may be transferred to another or others without loss of priority of the right. Such a transfer or change can be made only if it can be made without detriment or injury to existing rights. For the purposes of this subsection, existing rights do not include rights of applicants for water use permits. The provisions of subsections (1), (2), and (3) of this section regarding transfers or changes of water rights apply to transfers or changes concerning such surplus waters.

(5) This section shall not apply to trust water rights acquired by the state through the funding of water conservation projects under chapter 90.38 RCW or RCW 90.42.010 through 90.42.070.

Sec. 2. RCW 90.44.100 and 1987 c 109 s 113 are each amended to read as follows:

(1) After an application to, and upon the issuance by the department of an amendment to the appropriate permit or certificate of ground water right, the holder of a valid right to withdraw public ground waters may, without losing his priority of right, construct wells or other means of withdrawal at a new location in substitution for or in addition to those at the original location, or he may change the manner or the place of use of the water((~~: PROVIDED, HOWEVER, That such~~)). An amendment shall be issued only after publication of notice of the application and findings as prescribed in the case of an original application. Such amendment shall be issued by the department only on the conditions that: ((~~(1)~~)) (a) The additional or substitute well or wells shall tap the same body of public ground water as the original well or wells; ((~~(2)~~)) (b) use of the original well or wells shall be discontinued upon construction of the substitute well or wells; ((~~(3)~~)) (c) the construction of an additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and ((~~(4)~~)) (d) other existing rights shall not be impaired. The department may specify an approved manner of construction and shall require a showing of compliance with the terms of the amendment, as provided in RCW 90.44.080 in the case of an original permit.

(2) If a portion of the ground water governed by a water right is made surplus to the beneficial uses exercised under the right through the implementation of practices or technologies which are more water use efficient than those under which the right was perfected or through a change in the crops grown under the water right, the right to use the surplus water may be changed to use on other lands or at other places or may be transferred to another or others without loss of priority of the right. Such a transfer or change can be made only if it can be made without detriment or injury to existing rights. For the purposes of this subsection, existing rights do not include rights of applicants for water use permits. An application for the change or transfer shall be made to the department of ecology and considered by the department as provided for such a change or transfer of a right or portion of a right to the use of surface water which is within the jurisdiction of the department under RCW 90.03.380.

Sec. 3. RCW 90.03.290 and 1994 c 264 s 84 are each amended to read as follows:

When an application complying with the provisions of this chapter and with the rules and regulations of the department has been filed, the same shall be placed on record with the department, and it shall be its duty to investigate the application, and determine what water, if any, is available for appropriation, and find and determine to what beneficial use or uses it can be applied. If it is proposed to appropriate water for irrigation purposes, the department shall investigate, determine and find what lands are capable of irrigation by means of water found available for appropriation. If it is proposed to appropriate water for the purpose of power development, the department shall investigate, determine and find whether the proposed development is likely to prove detrimental to the public interest, having in mind the highest feasible use of the waters belonging to the public. If the application does not contain, and the applicant does not promptly furnish sufficient information on which to base such findings, the department may issue a preliminary permit, for a period of not to exceed three years, requiring the applicant to make such surveys, investigations, studies, and progress reports, as in the opinion of the department may be necessary. If the applicant fails to comply with the conditions of the preliminary permit, it and the application or applications on which it is based shall be automatically canceled and the applicant so notified. If the holder of a preliminary permit shall, before its expiration, file with the department a verified report of expenditures made and work done under the preliminary permit, which, in the opinion of the department, establishes the good faith, intent and ability of the applicant to carry on the proposed development, the preliminary permit may, with the approval of the governor, be extended, but not to exceed a maximum period of five years from the date of the issuance of the preliminary permit. The department shall make and file as part of the record in the matter, written findings of fact concerning all things investigated, and if it shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, it shall issue a permit stating the amount of water to which the applicant shall be entitled and the beneficial use or uses to which it may be applied: PROVIDED, That where the water applied for is to be used for irrigation purposes, it shall become appurtenant only to such land as may be reclaimed thereby to the full extent of the soil for agricultural purposes. But where there is no unappropriated water in the proposed source of supply, or where the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest, having due regard to the highest feasible development of the use of the waters belonging to the public, it shall be duty of the department to reject such application and to refuse to issue the permit asked for. If the permit is refused because of conflict with existing rights and such applicant shall acquire same by purchase or condemnation under RCW 90.03.040, the department may thereupon grant such permit. Any application may be approved for a less amount of water than that applied for, if there exists substantial reason therefor, and in any event shall not be approved for more water than can be applied to beneficial use for the purposes named in the application. In determining whether or not a permit shall issue upon any application, it shall be the duty of the department to investigate all facts relevant and material to the application. After the department approves said application in whole or in part and before any permit shall be issued thereon to the applicant, such applicant shall pay the fee provided in RCW 90.03.470: PROVIDED FURTHER, That in the event a permit is issued by the department upon any application, it shall be its duty to notify the director of fish and wildlife of such issuance.

This section does not apply to applications for transfers or changes made under RCW 90.03.380 or 90.44.100.

Sec. 4. RCW 90.44.445 and 1993 c 99 s 1 are each amended to read as follows:

In any acreage expansion program adopted by the department as an element of a ground water management program, the authorization for a water right certificate holder to participate in the program shall be on an annual basis for the first two years. After the two-year period, the department may authorize participation for ten-year periods. The department may authorize participation for ten-year periods for certificate holders who have already participated in an acreage expansion program for two years. The department may require annual certification that the certificate holder has complied with all requirements of the program. The department may terminate the authority of a certificate holder to participate in the program for one calendar year if the certificate holder fails to comply with the requirements of the program.

This section applies only in an area with a ground water area or subarea management. The provisions of RCW 90.44.100 apply to amendments to permits or rights for the beneficial use of ground water in any other area.

NEW SECTION. Sec. 5. A new section is added to chapter 43.21B RCW to read as follows:

(1) The legislature finds that the principle of requiring parties to exhaust the available administrative remedies has, with regard to certain decisions of the department of ecology, imposed severe burdens on members of the public. They are required to expend considerable resources and to suffer intolerable delays. The purpose of this section is to provide for the expedited review of the decisions of the department of ecology made under RCW 90.03.380(3) and 90.44.100(2).

(2) A decision made by the department of ecology under RCW 90.03.380(3) or 90.44.100(2) regarding a change or transfer of a right to use water may be appealed to an administrative law judge as an adjudicative proceeding under chapter 34.05 RCW, the administrative procedure act. The administrative law judge shall serve as the presiding officer for the hearing in accordance with RCW 34.05.425(3).

Sec. 6. RCW 34.05.425 and 1989 c 175 s 14 are each amended to read as follows:

(1) Except as provided in subsections (2) and (3) of this section, in the discretion of the agency head, the presiding officer in an administrative hearing shall be:

(a) The agency head or one or more members of the agency head;

(b) If the agency has statutory authority to do so, a person other than the agency head or an administrative law judge designated by the agency head to make the final decision and enter the final order; or

(c) One or more administrative law judges assigned by the office of administrative hearings in accordance with chapter 34.12 RCW.

(2) An agency expressly exempted under RCW 34.12.020(4) or other statute from the provisions of chapter 34.12 RCW or an institution of higher education shall designate a presiding officer as provided by rules adopted by the agency.

(3) The presiding officer in an administrative hearing for a decision made by the department of ecology under RCW 90.03.380(3) or 90.44.100(2) shall be an administrative law judge assigned by the office of administrative hearings in accordance with chapter 34.12 RCW. The administrative law judge shall make the final decision and enter the final order for these hearings.

(4) Any individual serving or designated to serve alone or with others as presiding officer is subject to disqualification for bias, prejudice, interest, or any other cause provided in this chapter or for which a judge is disqualified.

((~~(4)~~)) (5) Any party may petition for the disqualification of an individual promptly after receipt of notice indicating that the individual will preside or, if later, promptly upon discovering facts establishing grounds for disqualification.

((~~(5)~~)) (6) The individual whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination.

((~~(6)~~)) (7) When the presiding officer is an administrative law judge, the provisions of this section regarding disqualification for cause are in addition to the motion of prejudice available under RCW 34.12.050.

((~~(7)~~)) (8) If a substitute is required for an individual who becomes unavailable as a result of disqualification or any other reason, the substitute must be appointed by the appropriate appointing authority.

((~~(8)~~)) (9) Any action taken by a duly appointed substitute for an unavailable individual is as effective as if taken by the unavailable individual.

Sec. 7. RCW 34.05.461 and 1989 c 175 s 19 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section:

(a) If the presiding officer is the agency head or one or more members of the agency head, the presiding officer may enter an initial order if further review is available within the agency, or a final order if further review is not available;

(b) If the presiding officer is a person designated by the agency to make the final decision and enter the final order, or is an administrative law judge acting pursuant to RCW 34.05.425(3), the presiding officer shall enter a final order; and

(c) If the presiding officer is one or more administrative law judges, the presiding officer shall enter an initial order.

(2) With respect to agencies exempt from chapter 34.12 RCW or an institution of higher education, the presiding officer shall transmit a full and complete record of the proceedings, including such comments upon demeanor of witnesses as the presiding officer deems relevant, to each agency official who is to enter a final or initial order after considering the record and evidence so transmitted.

(3) Initial and final orders shall include a statement of findings and conclusions, and the reasons and basis therefor, on all the material issues of fact, law, or discretion presented on the record, including the remedy or sanction and, if applicable, the action taken on a petition for a stay of effectiveness. Any findings based substantially on credibility of evidence or demeanor of witnesses shall be so identified. Findings set forth in language that is essentially a repetition or paraphrase of the relevant provision of law shall be accompanied by a concise and explicit statement of the underlying evidence of record to support the findings. The order shall also include a statement of the available procedures and time limits for seeking reconsideration or other administrative relief. An initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order.

(4) Findings of fact shall be based exclusively on the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding. Findings shall be based on the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. Findings may be based on such evidence even if it would be inadmissible in a civil trial. However, the presiding officer shall not base a finding exclusively on such inadmissible evidence unless the presiding officer determines that doing so would not unduly abridge the parties' opportunities to confront witnesses and rebut evidence. The basis for this determination shall appear in the order.

(5) Where it bears on the issues presented, the agency's experience, technical competency, and specialized knowledge may be used in the evaluation of evidence.

(6) If a person serving or designated to serve as presiding officer becomes unavailable for any reason before entry of the order, a substitute presiding officer shall be appointed as provided in RCW 34.05.425. The substitute presiding officer shall use any existing record and may conduct any further proceedings appropriate in the interests of justice.

(7) The presiding officer may allow the parties a designated time after conclusion of the hearing for the submission of memos, briefs, or proposed findings.

(8) Initial or final orders shall be served in writing within ninety days after conclusion of the hearing or after submission of memos, briefs, or proposed findings in accordance with subsection (7) of this section unless this period is waived or extended for good cause shown.

(9) The presiding officer shall cause copies of the order to be served on each party and the agency.

Sec. 8. RCW 34.05.530 and 1988 c 288 s 506 are each amended to read as follows:

A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. An agency has standing to obtain judicial review of a final order if the final order is adverse to the agency and is issued by an administrative law judge acting pursuant to RCW 34.05.425(3). A person is aggrieved or adversely affected within the meaning of this section only when all three of the following conditions are present:

(1) The agency action has prejudiced or is likely to prejudice that person;

(2) That person's asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and

(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action.

Sec. 9. RCW 34.05.534 and 1988 c 288 s 507 are each amended to read as follows:

A person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged, or available within any other agency authorized to exercise administrative review, except:

(1) A petitioner for judicial review of a rule need not have participated in the rule-making proceeding upon which that rule is based, or have petitioned for its amendment or repeal;

(2) A petitioner for judicial review need not exhaust administrative remedies to the extent that this chapter or any other statute states that exhaustion is not required; ((or))

(3) The court may relieve a petitioner of the requirement to exhaust any or all administrative remedies upon a showing that:

(a) The remedies would be patently inadequate;

(b) The exhaustion of remedies would be futile; or

(c) The grave irreparable harm that would result from having to exhaust administrative remedies would clearly outweigh the public policy requiring exhaustion of administrative remedies; or

(4) A petitioner for judicial review of a final order issued by an administrative law judge acting pursuant to RCW 34.05.425(3) need not exhaust any other administrative remedy.

Sec. 10. RCW 34.12.040 and 1981 c 67 s 4 are each amended to read as follows:

Whenever a state agency conducts a hearing which is not presided over by officials of the agency who are to render the final decision, the hearing shall be conducted by an administrative law judge assigned under this chapter. In any adjudicative proceeding commenced in response to a decision by the department of ecology under RCW 90.03.380(3) or 90.44.100(2), the hearing shall be conducted by an administrative law judge assigned under this chapter according to procedural rules developed by the chief administrative law judge. In assigning administrative law judges, the chief administrative law judge shall wherever practical (1) use personnel having expertise in the field or subject matter of the hearing, and (2) assign administrative law judges primarily to the hearings of particular agencies on a long-term basis.

Sec. 11. RCW 43.21B.130 and 1990 c 65 s 3 are each amended to read as follows:

The administrative procedure act, chapter 34.05 RCW, shall apply to the appeal of rules and regulations adopted by the board to the same extent as it applied to the review of rules and regulations adopted by the directors and/or boards or commissions of the various departments whose powers, duties and functions were transferred by section 6, chapter 62, Laws of 1970 ex. sess. to the department. Except with regard to decisions made by the department under RCW 90.03.380(3) or 90.44.100(2) that are appealable to an administrative law judge pursuant to RCW 34.05.425(3), all other decisions and orders of the director and all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW shall be subject to review by the hearings board as provided in this chapter.

NEW SECTION. Sec. 12. A new section is added to chapter 90.03 RCW to read as follows:

A decision made by the department of ecology under RCW 90.03.380(3) regarding a change or transfer of a right to use water may be appealed to an administrative law judge in accordance with RCW 34.05.425(3).

NEW SECTION. Sec. 13. A new section is added to chapter 90.44 RCW to read as follows:

A decision made by the department of ecology under RCW 90.44.100(2) regarding a change or transfer of a right to use water may be appealed to an administrative law judge in accordance with RCW 34.05.425(3).

Sec. 14. RCW 43.21B.110 and 1993 c 387 s 22 are each amended to read as follows:

(1) The pollution control hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, the administrator of the office of marine safety, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 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) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(f) Any other decision by the department, the administrator of the office of marine safety, or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(2) The jurisdiction of the pollution control hearings board is further limited as follows:

(a) The hearings board shall have no jurisdiction whatsoever to review decisions of the department of ecology under RCW 90.03.380(3) or 90.44.100(2) regarding a change or a transfer of a right to use water, or to review proceedings concerning general adjudications of water rights conducted pursuant to chapter 90.03 or 90.44 RCW.

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

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

((~~(b)~~)) (ii) 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)~~)) (iii) 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.

Sec. 15. RCW 43.21B.240 and 1989 c 175 s 105 are each amended to read as follows:

The department and air authorities shall not have authority to hold adjudicative proceedings pursuant to the Administrative Procedure Act, chapter 34.05 RCW((~~. Such~~)), except with regard to decisions of the department made under RCW 90.03.380(3) or 90.44.100(2). All other hearings shall be held by the pollution control hearings board.

Sec. 16. RCW 43.21B.310 and 1992 c 73 s 3 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, any order issued by the department, the administrator of the office of marine safety, or authority pursuant to RCW 70.94.211, 70.94.332, 70.105.095, 43.27A.190, 86.16.020, 88.46.070, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after receipt of the order. Except as provided under chapter 70.105D RCW, ((~~this is~~)) these are the exclusive means of appeal of such an order.

((~~(2)~~)) (a) The department, the administrator, or the authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal.

((~~(3)~~)) (b) At any time during the pendency of an appeal of such an order to the board or to an administrative law judge acting pursuant to RCW 34.05.425(3), the appellant may apply pursuant to RCW 43.21B.320 to the hearings board or administrative law judge for a stay of the order or for the removal thereof.

((~~(4)~~)) (c) Any appeal before the hearings board must contain the following in accordance with the rules of the hearings board:

((~~(a)~~)) (i) The appellant's name and address;

((~~(b)~~)) (ii) The date and docket number of the order, permit, or license appealed;

((~~(c)~~)) (iii) A description of the substance of the order, permit, or license that is the subject of the appeal;

((~~(d)~~)) (iv) A clear, separate, and concise statement of every error alleged to have been committed;

((~~(e)~~)) (v) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and

((~~(f)~~)) (vi) A statement setting forth the relief sought.

((~~(5)~~)) (d) Upon failure to comply with any final order of the department or the administrator, the attorney general, on request of the department or the administrator or the administrative law judge acting pursuant to RCW 34.05.425(3), may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order. The air authorities may bring similar actions to enforce their orders.

((~~(6)~~)) (e) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that it may be appealed only by filing an appeal with the hearings board and serving it on the department within thirty days of receipt.

(2) Decisions of the department of ecology made under RCW 90.03.380(3) or 90.44.100(2) may not be appealed to the hearings board; they may be appealed to an administrative law judge in accordance with RCW 34.05.425(3).

Sec. 17. RCW 34.05.419 and 1988 c 288 s 404 are each amended to read as follows:

After receipt of an application for an adjudicative proceeding, other than a declaratory order, an agency shall proceed as follows:

(1) Except in situations governed by subsection (2) ((or)), (3), or (4) of this section, within ninety days after receipt of the application or of the response to a timely request made by the agency under subsection (2) of this section, the agency shall do one of the following:

(a) Approve or deny the application, in whole or in part, on the basis of brief or emergency adjudicative proceedings, if those proceedings are available under this chapter for disposition of the matter;

(b) Commence an adjudicative proceeding in accordance with this chapter; or

(2) Within thirty days after receipt of the application, the agency shall examine the application, notify the applicant of any obvious errors or omissions, request any additional information the agency wishes to obtain and is permitted by law to require, and notify the applicant of the name, mailing address, and telephone number of an office that may be contacted regarding the application;

(3) If the application seeks relief that is not available when the application is filed but may be available in the future, the agency may proceed to make a determination of eligibility within the time limits provided in subsection (1) of this section. If the agency determines that the applicant is eligible, the agency shall maintain the application on the agency's list of eligible applicants as provided by law and, upon request, shall notify the applicant of the status of the application;

(4) After receipt of an application for an adjudicative proceeding in response to a decision made by the department of ecology under RCW 90.03.380(3) or 90.44.100(2), the department of ecology shall within thirty days of the receipt of the application commence an adjudicatory proceeding in accordance with this chapter.

Sec. 18. RCW 34.05.514 and 1994 c 257 s 23 are each amended to read as follows:

(1) Except as provided in subsections (2) and (3) of this section ((~~and RCW 36.70A.300(3)~~)), proceedings for review under this chapter shall be instituted by filing a petition in the superior court, at the petitioner's option, for (a) Thurston county, (b) the county of the petitioner's residence or principal place of business, or (c) in any county where the property owned by the petitioner and affected by the contested decision is located.

(2) For proceedings involving institutions of higher education, the petition shall be filed either in the county in which the principal office of the institution involved is located or in the county of a branch campus if the action involves such branch.

(3) For proceedings involving water related to decisions made by the department of ecology under RCW 90.03.380(3) or 90.44.100(2), the petition shall be filed in the superior court in the county that will be directly and immediately affected by the decision.

Sec. 19. RCW 43.21B.320 and 1987 c 109 s 7 are each amended to read as follows:

(1) A person appealing to the hearings board or to an administrative law judge acting pursuant to RCW 34.05.425(3), an order of the department or an authority, not stayed by the issuing agency, may obtain a stay of the effectiveness of that order only as set forth in this section.

(2) An appealing party may request a stay by including such a request in the appeal document, in a subsequent motion, or by such other means as the rules of the hearings board or the procedural rules developed by the chief administrative law judge for appeals made pursuant to RCW 34.05.425(3) shall prescribe. The request must be accompanied by a statement of grounds for the stay and evidence setting forth the factual basis upon which request is based. The hearings board or the administrative law judge shall hear the request for a stay as soon as possible. The hearing on the request for stay may be consolidated with the hearing on the merits.

(3) The applicant may make a prima facie case for stay if the applicant demonstrates either a likelihood of success on the merits of the appeal or irreparable harm. Upon such a showing, the hearings board or administrative law judge shall grant the stay unless the department or authority demonstrates either (a) a substantial probability of success on the merits or (b) likelihood of success on the merits and an overriding public interest which justifies denial of the stay.

(4) Unless otherwise stipulated by the parties, the hearings board or administrative law judge, after granting or denying an application for a stay, shall expedite the hearing and decision on the merits.

(5) Any party or other person aggrieved by the grant or denial of a stay by the hearings board may petition the superior court for Thurston county for review of that decision pursuant to chapter 34.05 RCW pending the appeal on the merits before the board. Any party or other person aggrieved by the grant or denial of a stay by an administrative law judge acting pursuant to RCW 34.05.425(3) may petition the superior court for the county that will be directly and immediately affected by the stay. The superior court shall expedite its review of the decision of the hearings board or administrative law judge.