BP BHEAD INT S

AN ACT Relating to adjudication and regulation of water rights; amending RCW 90.03.015, 90.03.110, 90.03.120, 90.03.130, 90.03.140, 90.03.200, 43.21A.064, and 90.14.140; adding new sections to chapter 90.03 RCW; adding a new section to chapter 43.27A RCW; creating a new section; and repealing RCW 90.03.160, 90.03.170, and 90.03.190.

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

NEW SECTION. Sec. 1. The legislature finds that lack of certainty in water rights within the water resource basins of Washington impedes the management and planning for the use of the state's water in the interests of all of the residents of the state. Therefore, it is the intent of this act to establish a comprehensive program for the adjudication of water rights in all basins of the state over the next twenty years, and that this program will be consistent with and further the cooperative planning processes that may be undertaken in these basins.

Sec. 2. RCW 90.03.015 and 1987 c 109 s 65 are each amended to read as follows:

As used in this chapter:

(1) "Adjudication" or "water rights adjudication" means a proceeding for the determination of all claims to the use of water within a water resource basin, initiated under RCW 90.03.110;

(2) "Department" means the department of ecology;

((~~(2)~~)) (3) "Director" means the director of ecology; and

((~~(3)~~)) (4) "Person" means any firm, association, water users' association, corporation, irrigation district, or municipal corporation, as well as an individual.

NEW SECTION. Sec. 3. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department shall prepare a plan for initiating and completing the adjudication of all water rights claims in the state by July 1, 2015. The plan shall include a division of the state into distinct hydrologic units to be called water resource basins, which shall define the areas to be the subject of proceedings for the adjudication of water rights under RCW 90.03.110. In defining the units the department shall consider surface and ground water hydrology and the physical characteristics of the area. Where possible the water resource basins shall be consistent with areas developed for planning and management purposes under RCW 90.54.040.

(2) The plan shall set forth a timeline for the filing and conduct of petitions for adjudication proceedings under RCW 90.03.110. The timeline shall be designed to meet the goal of the entry of final adjudication decrees for all basins in the state by July 1, 2015. The plan shall identify basins for early proceedings that exhibit the greatest potential for existing conflicts among water claimants and the greatest degree of potential overwithdrawal within the basin. In prioritizing basins the department shall also place higher priority upon basins with completed water resource plans or in which a plan is nearing completion.

(3) The plan shall include a proposed timeline and budget for adjudication proceedings in each basin, including a projection of the costs on an annual basis for the department's participation in the basin adjudication, and the costs to the superior court. The timeline shall be constructed so as to ensure that approximately one-twentieth of the adjudication work is done each year.

(4) In preparing the plan the department shall provide an opportunity to the public to comment upon a draft plan and to submit suggestions for basins upon which to provide a priority in the initiation of water adjudication proceedings.

(5) The plan shall be completed on or before December 1, 1995, and submitted to the governor and the appropriate fiscal and standing committees of the legislature. The plan shall be revised no less than biennially and submitted to the governor and such committees of the legislature by December 1 of each even-numbered year. Plan revisions shall describe the progress in completing pending adjudications and any changes in circumstances since the previous revision that may bear upon the conduct and priority order of adjudication proceedings and the costs of such proceedings. The plan shall also recommend appropriations to fund water rights negotiations or comprehensive basin program development that may be conducted concurrently with or subsequent to a water adjudication within the basin.

NEW SECTION. Sec. 4. A new section is added to chapter 90.03 RCW to read as follows:

(1) Except as provided in subsection (2) of this section, the proceedings for water rights adjudications initiated under RCW 90.03.110 shall include all claimants of rights to the beneficial use of waters within the basin, including surface and ground waters, and without regard to the legal source upon which the claim is grounded.

(2) A person with a claim to the beneficial use of waters with a claimed priority date on or before June 30, 1974, and who has relinquished such right, title, or interest in a water right for failure to file a statement of claim pursuant to RCW 90.14.041 or 90.14.043, may not assert a claim for any portion of the relinquished right.

Sec. 5. RCW 90.03.110 and 1987 c 109 s 72 are each amended to read as follows:

((Upon the filing of a petition with the department by one or more persons claiming the right to divert any waters within the state or when, after investigation, in the judgment of the department, the interest of the public will be subserved by a determination of the rights thereto,)) The department shall prepare and file with the appropriate superior court petitions for the adjudication of claims within water resource basins, in accordance with the plan for adjudication proceedings developed under section 3 of this act. In so doing it shall be the duty of the department to prepare a statement of the facts, together with a plan or map of the ((~~locality~~)) basin under investigation, and file such statement and plan or map in the superior court of the county in which said water is situated, or, in case such water flows or is situated in more than one county, in the county which the department shall determine to be the most convenient to the parties interested therein. Such statement shall contain substantially the following ((~~matter, to wit~~)):

(1) The names of all known persons claiming the right to divert said water, the right to the diversion of which is sought to be determined((~~, and~~));

(2) Claims or other sources of authority for the right to maintain instream flows;

(3) Claims based upon federal or tribal-reserved water rights;

(4) A description of any agreements relating to water rights or water resource management within the basin entered among the state, federal government, tribal governments, or water users within the basin; and

(5) A brief statement of the facts in relation to such water((~~, and the necessity for a determination of the rights thereto~~)).

Sec. 6. RCW 90.03.120 and 1987 c 109 s 73 are each amended to read as follows:

Upon the filing of the statement and map as provided in RCW 90.03.110 the judge of such superior court shall make an order directing summons to be issued, and fixing the return day thereof, which shall be not less than sixty nor more than ninety days, after the making of such order: PROVIDED, That for good cause, the court((~~, at the request of the department,~~)) may modify said time period. A summons shall thereupon be issued out of said superior court, signed and attested by the clerk thereof, in the name of the state of Washington, as plaintiff, against all known persons claiming the right to divert the water involved and also all persons unknown claiming the right to divert the water involved, which said summons shall contain a brief statement of the objects and purpose of the proceedings and shall require the defendants to appear on the return day thereof, and make and file a statement of claim to, or interest in, the water involved and a statement that unless they appear at the time and place fixed and assert such right, judgment will be entered determining their rights according to the evidence: PROVIDED, HOWEVER, That any persons claiming the right to the use of water by virtue of a contract with claimant to the right to divert the same, shall not be necessary parties to the proceeding.

Sec. 7. RCW 90.03.130 and 1987 c 109 s 74 are each amended to read as follows:

Service of said summons shall be made in the same manner and with the same force and effect as service of summons in civil actions commenced in the superior courts of the state: PROVIDED, That for good cause, the court((~~, at the request of the department,~~)) as an alternative to personal service, may authorize service of summons to be made by certified mail, with return receipt signed by defendant, a spouse of a defendant, or another person authorized to accept service. If the defendants, or either of them, cannot be found within the state of Washington, ((~~of which the return of the sheriff of the county in which the proceeding is pending shall be prima facie evidence,~~)) upon the filing of an affidavit by the department, or its attorney, in conformity with the statute relative to the service of summons by publication in civil actions, such service may be made by publication in a newspaper of general circulation in the county in which ((~~such proceeding is pending, and also publication of said summons in a newspaper of general circulation in each county in which any portion of the water~~)) the defendant's last known residence address is situated((,)) once a week for ((~~six~~)) two consecutive weeks ((~~(six~~)) two publications(())). In cases where personal service can be had, such summons shall be served at least twenty days before the return day thereof. The summons by publication shall state that statements of claim must be filed within twenty days after the last publication or before the return date, whichever is later.

Personal service of summons may be made by department of ecology employees for actions pertaining to water rights.

Sec. 8. RCW 90.03.140 and 1987 c 109 s 75 are each amended to read as follows:

(1) On or before the return day of such summons, each defendant shall file in the office of the clerk of said court a statement, and therewith a copy thereof for the department, containing substantially the following:

((~~(1) The name and post office address of defendant.~~

~~(2) The full nature of the right, or use, on which the claim is based.~~

~~(3) The time of initiation of such right and commencement of such use.~~

~~(4) The date of beginning and completion of construction.~~

~~(5) The dimensions and capacity of all ditches existing at the time of making said statement.~~

(6) The amount of land under irrigation and the maximum quantity of water used thereon prior to the date of said statement and if for power, or other purposes, the maximum quantity of water used prior to date of said statement.

~~(7) The legal description of the land upon which said water has been, or may be, put to beneficial use, and the legal description of the subdivision of land on which the point of diversion is located.~~))

(a) The person's name and mailing address;

(b) The name of the water source from which the right to divert or make use of water is claimed;

(c) The quantity of water used based on an instantaneous rate of withdrawal in cubic feet per second or gallons per minute and on a yearly quantity in acre feet per year for each year since 1967. All documentation available to the person that supports the quantity of use shall be provided, including but not limited to flow meter records and electrical records;

(d) The legal description of the area where the water has been beneficially used for each of the last ten years from 1994. The area of use shall be described with specificity by metes and bounds, sections or a portion thereof, or by parcel numbers within a platted area, and represented on a map drawn to scale;

(e) The legal description of the point or points of diversion or withdrawal, the method of diversion or withdrawal, and the method of conveying the water to the place of use, including the dimension and capacity of all ditches, pipelines, and other diversion works, existing at the time of making the statement;

(f) The purposes of the water use for each of the last ten years from 1994, and specifying the number of residences, if any, served by the water;

(g) The legal basis of the water right claimed, whether by permit, certificate, or rule issued by the state, a statement of claim filed under chapter 90.14 RCW, the right to use ground water by exemption under RCW 90.44.050, reserved rights under federal law, or other legal basis;

(h) The date of initiation of such right and commencement of such use;

(i) The date of beginning and completion of construction;

(j) The amount of land under irrigation and the maximum quantity of water used therein for the previous ten years from 1994 and, if for power or other purposes, maximum quantity of water used on an annual basis for the previous ten years from 1994.

(2) Such statement shall be verified on oath by the defendant, and in the discretion of the court may be amended.

NEW SECTION. Sec. 9. A new section is added to chapter 90.03 RCW to read as follows:

(1) Upon the filing of the statement and map by the department under RCW 90.03.110, the court shall by order direct the department to commence an investigation of all uses of and demands for water in the basin. The court upon motion by the department may stay the order pending the resolution of any ongoing negotiations relating to water rights in the basin whose resolution may expedite the resolution of the adjudication proceeding.

(2) In conducting the investigation the department shall notify all persons having filed an appearance in the proceeding, advising them of the manner in which information relevant to the investigation may be submitted to the department.

(3) The department shall have all powers necessary to fully investigate the claims made in the proceeding, including the conduct of field investigations by the entry onto real property following landowner permission, and the power to subpoena and inspect all books, papers, or other records pertaining to the claims.

(4) In making its investigation, the department shall develop findings regarding:

(a) The quantity of water available under reasonable predictions of annual yield or flow, for use in the basin, including the safe sustaining yield of all ground water sources;

(b) The necessary base flows in all rivers and streams in the basin and the water level of other water bodies in the basin based on and in recognition of the public's interest in the protection of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values; and

(c) The uses of water stated in the statements of water use filed under RCW 90.03.140, and provide a preliminary determination as to the existence, priority, quantity, places of use, and points of diversion for each water use.

(5) In conducting the investigation the department shall hold at least one public hearing within the basin, in which all interested parties may comment upon the issues and claims identified by the department as within the scope of the investigation. The department shall also afford any interested party an opportunity to submit comments in writing for consideration by the department in developing its preliminary report.

NEW SECTION. Sec. 10. A new section is added to chapter 90.03 RCW to read as follows:

(1) The attorney general shall represent the interests of the state of Washington in each adjudication proceeding regarding:

(a) The public's interest in maintaining the base flows necessary to provide for the preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigational values.

(b) The furtherance of the fundamental water resource policies as expressed in chapter 90.54 RCW, including maximizing the beneficial uses of the state's waters and encouraging water use efficiency and water reuse.

(2) In performing its responsibilities under this section the attorney general shall solicit the views and information of other agencies of state government having expertise or jurisdiction regarding water uses and water resource management.

(3) This section shall not affect the court's authority to permit other persons or organizations to participate in adjudication proceedings based upon established judicial principles of standing.

NEW SECTION. Sec. 11. A new section is added to chapter 90.03 RCW to read as follows:

(1) Within twenty-four months of initiating the investigation, the department shall prepare and file a preliminary report containing the determinations relating to water use and water rights claims within the basin.

(2) Upon filing of the preliminary report and the conclusion of any negotiations initiated under section 12 of this act, the court shall set a time for hearing of the report. The court shall cause to be served upon all persons having appeared in the proceeding, their agents, or attorneys, a copy of a notice of the date and location of the hearing, together with a copy of the report.

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

(1) Upon the filing of a petition for an adjudication proceeding under RCW 90.03.110, the department shall advise the governor as to whether initiating negotiations for the development of a comprehensive water resources program within the basin may materially assist in resolving issues presented in the water rights adjudication. The department shall consult with all interested parties in developing its recommendations to the governor, including water users and water rights claimants in the basin, appropriate state and federal agencies, Indian tribes, and local governments.

(2) Following receipt of the department's recommendations, the governor may direct the department to initiate negotiations for the development of a comprehensive water resources program under RCW 90.54.040. Where an adjudication proceeding is pending in the basin, the department shall by motion, with notice to all parties, request the court to stay the proceeding for a reasonable time, not to exceed twenty-four months, in order to complete the negotiations and to seek agreements among the parties regarding water use and allocation that may facilitate resolution of outstanding issues in the adjudication proceeding.

(3) The department shall include the results of the negotiations and program development in its preliminary report filed with the court in the adjudication proceeding. The court shall accord substantial deference to the findings and agreements contained in the report that bear upon the issues presented in the adjudication proceeding.

Sec. 13. RCW 90.03.200 and 1988 c 202 s 91 are each amended to read as follows:

(1) Upon the filing of the ((~~evidence and the~~)) preliminary report ((~~of the department~~)), any interested party may, on or before five days prior to the date of said hearing, file exceptions to such report in writing and such exception shall set forth the grounds therefor and a copy thereof shall be served personally or by registered mail upon all parties who have appeared in the proceeding. If no exceptions be filed, the court shall enter a decree determining the rights of the parties according to the ((~~evidence and the~~)) preliminary report ((~~of the department, whether such parties have appeared therein or not~~)) and the report shall be made final. If exceptions are filed the action shall proceed as in case of reference of a suit in equity and the court may in its discretion take further evidence ((or, if necessary, remand the case for such further evidence to be taken by the department's designee, and may require further report by him. Costs, not including taxable attorneys fees, may be allowed or not; if allowed, may be apportioned among the parties in the discretion of the court)). Appellate review of the decree shall be in the same manner as in other cases in equity, except that review must be sought within sixty days from the entry thereof.

(2) Upon entry of the decree, the court shall by order establish a schedule by which the department shall periodically file with the court a summary of all subsequent actions in the basin relating to water rights, including the issuance of new permits, transfers, and relinquishments. The court's order shall inform all parties to the proceeding of the manner in which to obtain such information, but notice thereafter of each filing by the department is not necessary.

NEW SECTION. Sec. 14. A new section is added to chapter 90.03 RCW to read as follows:

(1) The decree entered in an adjudication proceeding shall be conclusive as to all rights to the use of water in the watershed in any proceeding in which such rights are at issue.

(2) The department shall establish a registry containing information relating to the water rights confirmed in the decree, and that contains all subsequent actions in each basin affecting water rights, including transfers, relinquishments, and issuance of new permits. The registry shall be accessible by the public and information in the registry shall be made available to each county for consolidation with its real property records.

NEW SECTION. Sec. 15. A new section is added to chapter 43.27A RCW to read as follows:

The purpose of this section is to set forth the powers of the department to regulate the withdrawal or diversion of public waters and water or water rights related thereto including regulation based on dates of priority or other pertinent factors. Regulatory actions taken under this section shall be based on examination and determination by the department or the court, as applicable, of the various water rights involved according to the department's records and other records and pertinent facts. The powers set forth in this section may be exercised whether or not a general adjudication relating to the water rights involved has been conducted.

(1) In a regulatory situation (a) where a water right or all water rights proposed for regulation by the department, as well as any right or rights of a senior priority that the proposed regulation is designed to protect, is or are embodied in a certificate or certificates issued under RCW 90.03.240, 90.03.330, 90.38.040, 90.42.040, or 90.44.060 or a permit or permits issued pursuant to RCW 90.03.290 or 90.44.060; or (b) where a flow or level has been established by rule pursuant to chapter 90.22 or 90.54 RCW; or (c) where it appears to the department that public waters are being withdrawn without any right or other appropriate authority whatsoever, the department in its discretion is authorized to regulate the right or rights under either RCW 43.27A.190 or subsection (2) of this section.

(2) In a regulatory situation where one or more of the water rights proposed for regulation by the department, as well as any right or rights of a senior priority that the proposed regulation is designed to protect, is not or are not embodied in a permit or certificate as described in subsection (1) of this section, the department, as its sole and exclusive power to regulate, is authorized to bring an appropriate action at law or in equity, including seeking injunctive relief, as it may deem necessary. Where actions are brought in a state court, the actions shall be initiated in the superior court of the county where the point or points of diversion of the water right or rights proposed for regulation are located. If the points of diversion are located in more than one county, the department may bring the action in a county where a point of diversion is located.

(3) Nothing in this section authorizes the department to accomplish a general adjudication of water rights proceeding or the substantial equivalent of a general adjudication of water rights. The exclusive procedure for accomplishing a general adjudication of water rights is under RCW 90.03.110 through 90.03.245 or 90.44.220.

(4) Nothing in this section shall amend, reuse, or repeal RCW 90.14.130 or 90.14.200.

(5) This section does not in any way modify regulatory powers previously placed with the department except as provided in subsections (1) and (2) of this section.

Sec. 16. 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) Insofar as may be necessary to assure safety to life or property, he or she 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 or she 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;

(3) He or she shall regulate and control the diversion of water in accordance with the rights thereto, as determined by adjudication decrees under the procedures required by section 15 of this act;

(4) He or she 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 or she 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 or she shall keep a seal of the office, and all certificates by him or her covering any of his or her acts or the acts of his or her office, or the records and files of his or her office, under such seal, shall be taken as evidence thereof in all courts;

(6) He or she shall render when required by the governor, a full written report of the work of his or her office with such recommendations for legislation as he or she 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 or she shall establish and promulgate rules governing the administration of chapter 90.03 RCW;

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

Sec. 17. RCW 90.14.140 and 1987 c 125 s 1 are each amended to read as follows:

(1) For the purposes of RCW 90.14.130 through 90.14.180, "sufficient cause" shall be defined as the nonuse of all or a portion of the water by the owner of a water right for a period of five or more consecutive years where such nonuse occurs as a result of:

(a) Drought, or other unavailability of water;

(b) Active service in the armed forces of the United States during military crisis;

(d) The operation of legal proceedings other than an adjudication proceedings initiated under RCW 90.03.110;

(e) Federal laws imposing land or water use restrictions either directly or through the voluntary enrollment of a landowner in a federal program implementing those laws, or acreage limitations, or production quotas.

(2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right:

(a) If such right is claimed for power development purposes under chapter 90.16 RCW and annual license fees are paid in accordance with chapter 90.16 RCW, or

(b) If such right is used for a standby or reserve water supply to be used in time of drought or other low flow period so long as withdrawal or diversion facilities are maintained in good operating condition for the use of such reserve or standby water supply, or

(c) If such right is claimed for a determined future development to take place either within fifteen years of July 1, 1967, or the most recent beneficial use of the water right, whichever date is later, or

(d) If such right is claimed for municipal water supply purposes under chapter 90.03 RCW, or

(e) If such waters are not subject to appropriation under the applicable provisions of RCW 90.40.030 as now or hereafter amended.

NEW SECTION. Sec. 18. The following acts or parts of acts are each repealed:

(1) RCW 90.03.160 and 1989 c 80 s 1, 1987 c 109 s 76, & 1917 c 117 s 19;

(2) RCW 90.03.170 and 1987 c 109 s 77 & 1917 c 117 s 20; and

(3) RCW 90.03.190 and 1987 c 109 s 78 & 1917 c 117 s 22.