BP BHEAD INT H

AN ACT Relating to water rights; amending RCW 90.14.081, 90.14.130, and 90.14.190; and adding a new section to chapter 90.03 RCW.

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

NEW SECTION. Sec. 1. A new section is added to chapter 90.03 RCW to read as follows:

(1) A statement of claim for a water right filed in the water rights claims registry under chapter 90.14 RCW and the provisions of a water right certificate issued by the department or its predecessor agencies under this title or issued as the result of a water right adjudication are each prima facie evidence of the water right in any proceeding involving the water right. The burden of proof in demonstrating that any aspect of the right evidenced in the statement or certificate is invalid is on the party challenging its validity.

(2) If a water right or portion of a water right applies only to the use of naturally occurring water and any party, including but not limited to the department, claims that any part of the water used under the right is artificially stored water, the burden is on the party making such an assertion to prove that the water used is artificially stored water.

(3) If a water right or portion of a water right applies only to the use of artificially stored water and any party, including but not limited to the department, claims that any part of the water used under the right is naturally occurring water, the burden is on the party making such an assertion to prove that the water used is naturally occurring water.

Sec. 2. RCW 90.14.081 and 1969 ex.s. c 284 s 17 are each amended to read as follows:

The filing of a statement of claim does not constitute an adjudication of any claim to the right to use of waters as between the water use claimant and the state, or as between one or more water use claimants and another or others. However, a statement of claim filed pursuant to RCW 90.14.061 shall be admissible in a general adjudication of water rights and in any administrative, quasi-judicial, or judicial proceeding regarding the validity of the water right claimed in the statement as prima facie evidence of the ((times of use and the quantity of water the claimant was withdrawing or diverting as of the year of the filing, if, but only if, the quantities of water in use and the time of use when a controversy is mooted are substantially in accord with the times of use and quantity of water claimed in the statement of claim. A statement of claim shall not otherwise be evidence of the priority of the)) claimed water right.

Sec. 3. RCW 90.14.130 and 1987 c 109 s 13 are each amended to read as follows:

When it appears to the department of ecology that a person entitled to the use of water has not beneficially used his or her water right or some portion thereof, and it appears that ((~~said~~)) the right ((~~has or~~)) may have reverted to the state because of such nonuse, as provided by RCW 90.14.160, 90.14.170, or 90.14.180, the department of ecology shall notify such person by order: PROVIDED, That where a company, association, district, or the United States has filed a blanket claim under the provisions of RCW 90.14.060 for the total benefits of those served by it, the notice shall be served on such company, association, district or the United States and not upon any of its individual water users who may not have used the water or some portion thereof which they were entitled to use. The order shall contain: (1) A description of the water right, including the approximate location of the point of diversion, the general description of the lands or places where such waters were used, the water source, the amount involved, the purpose of use, and the apparent authority upon which the right is based; and (2) a statement that ((~~unless~~)): (a) The department has determined that the person or the person's predecessor in right has abandoned the water right or has failed to use the water right or a portion of the right for a period of five successive years without sufficient cause as such nonuse is described in RCW 90.14.160, 90.14.170, or 90.14.180; (b) if the department's determination is found to be ((~~shown~~)) valid on appeal, the water right will be declared relinquished; and ((~~(3) a statement that~~)) (c) such order ((~~may be~~)) is automatically appealed to the pollution control hearings board. ((~~Any person aggrieved by such an order may appeal it to~~)) The order shall be served by registered or certified mail to the last known address of the person and shall be posted at the point of division or withdrawal. The department shall notify the pollution control hearings board of each such order and, upon receipt, the board shall review the order as if it had been appealed pursuant to RCW 43.21B.310. ((~~The order shall be served by registered or certified mail to the last known address of the person and be posted at the point of division or withdrawal.~~)) The order by itself shall not alter the recipient's right to use water, if any.

Sec. 4. RCW 90.14.190 and 1987 c 109 s 14 are each amended to read as follows:

Any person feeling aggrieved by any decision of the department of ecology may have the same reviewed pursuant to RCW 43.21B.310. In any such review regarding the validity of a statement of claim filed in the water rights claims registry or regarding an order issued under RCW 90.14.130, the ((~~findings of fact as set forth in the report of the department of ecology~~)) statement of claim or certificate of water right that is the subject of the review shall be prima facie evidence of the ((~~fact of any waiver or relinquishment of a~~)) water right or portion thereof that is in question. If the hearings board affirms the decision of the department, a party seeks review in superior court of that hearings board decision pursuant to chapter 34.05 RCW, and the court determines that the party was injured by an arbitrary, capricious, or erroneous order of the department, the court may award reasonable attorneys' fees.