6334-S

AN ACT Relating to the processing of water rights; amending RCW 90.03.340, 90.03.270, 90.03.280, 90.03.290, 90.03.320, 90.03.260, 90.44.060, and 90.03.250; adding new sections to chapter 43.21B RCW; and adding new sections to chapter 90.03 RCW.

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

Sec. 1. RCW 90.03.340 and 1987 c 109 s 90 are each amended to read as follows:

After January 1, 1997, the priority date of the right acquired by appropriation ((~~shall relate back to~~)) is the date ((~~of filing of~~)) the ((~~original~~)) completed application form for the right is filed with the department. For the purposes of this section and RCW 90.03.270, a completed application form is one that contains all of the information requested on the form and is accompanied by the application fee.

Sec. 2. RCW 90.03.270 and 1987 c 109 s 85 are each amended to read as follows:

Upon receipt of ((an)) a completed water right application form it shall be the duty of the department to ((~~make an endorsement thereon of the~~)) date ((~~of its receipt~~)), stamp, and to keep a record of ((~~same~~)) it. If ((~~upon examination, the application is found to be defective,~~)) an application form is filed with the department but the information requested on the application form is not complete or the form is not accompanied by the proper application fee, the form and any application fee filed with it shall be returned to the applicant ((~~for correction or completion,~~)) and the date and the reasons for the return thereof shall be ((endorsed thereon and made a record in his office. No application shall lose its priority of filing on account of such defects, provided acceptable maps, drawings and such data as is required by the department shall be filed with the department within such reasonable time as it shall require)) noted in the department's records and in a letter returning the form. The department may not require an applicant to provide information in support of an application for a water right permit that is not necessary for the department's investigations, determinations, or findings regarding that particular application.

Sec. 3. RCW 90.03.280 and 1994 c 264 s 83 are each amended to read as follows:

Upon receipt of a ((~~proper~~)) completed application, the department shall instruct the applicant to publish notice ((~~thereof~~)) in a form and within a time prescribed by the department in a newspaper of general circulation published in the county or counties in which the storage, diversion or withdrawal, and use is to be made, and in such other newspapers as the department may direct, once a week for two consecutive weeks. The notice shall include information pertinent to the proposed appropriation, including the location, the source, the purpose or purposes of use, and the quantity proposed to be diverted or withdrawn. The notice shall state that persons wishing to protest the proposed appropriation must do so in writing to the department within thirty days of the last date of publication of the notice. In order to be considered by the department, a protest must be received by the department within thirty days of the last date of publication of the notice. Upon receipt by the department of an application it shall send notice thereof containing pertinent information to the director of fish and wildlife.

NEW SECTION. Sec. 4. A new section is added to chapter 43.21B RCW to read as follows:

In a proceeding before the pollution control hearings board challenging a decision of the department related to the issuance, conditioning, transfer, amendment, or denial of a water right permit under Title 90 RCW, the burden of proof is on the person filing the appeal.

NEW SECTION. Sec. 5. A new section is added to chapter 90.03 RCW to read as follows:

A water right applicant may appeal to the pollution control hearings board a determination by the department regarding the nature and extent of the information needed to make determinations regarding the application for or the processing of a water right permit.

NEW SECTION. Sec. 6. A new section is added to chapter 43.21B RCW to read as follows:

(1) In any appeals of water-related agency actions over which the hearings board has jurisdiction, the chairman of the hearings board may assign the case to a single member of the hearings board in lieu of the entire board. In such cases, the board member assigned to the case shall have all powers relating to the administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies in chapter 34.05 RCW, the administrative procedure act, and shall be subject to all duties imposed upon, and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings.

(2) The environmental hearings office shall by rule determine a procedure for the random selection and rotation of board members for single-member cases, and shall implement this procedure in assigning an appeal of a water-related agency action to a single board member for review.

(3) In cases decided under subsection (1) of this section, a decision of the single member shall have the same force and effect as a decision of the full board. A party to an appeal decided by a single board member may, within ten days of a decision, request rehearing en banc. A request for rehearing en banc shall be granted only by agreement of two members of the board. Rehearing en banc is not favored and ordinarily will not be granted except (a) when consideration of the full hearings board is necessary to secure or maintain uniformity of its decisions, or (b) when the proceeding involves a question of exceptional importance. En banc review shall be limited to review of the record.

(4) A request for rehearing en banc under subsection (3) of this section is not a prerequisite for seeking judicial review. An order denying rehearing en banc is not subject to reconsideration under RCW 34.05.470 or by any court.

(5) No request for rehearing en banc may stay the effectiveness of an order.

(6) Nothing in this section affects the rights of a party under RCW 34.05.470.

(7) For purposes of this section, a "water-related agency action" includes (a) a decision to grant or deny a permit or certificate for a right to the beneficial use of water or to amend, change, or transfer such a right; (b) a decision 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 (c) a decision regarding the nature and extent of the information needed to make determinations regarding the application for or processing of a water right permit.

Sec. 7. RCW 90.03.290 and 1994 c 264 s 84 are each amended to read as follows:

(1) When ((an)) a completed application complying with the provisions of this chapter and with the rules ((~~and regulations~~)) of the department has been filed, the ((~~same~~)) application shall be placed on record with the department, and it shall be ((~~its~~)) the department's 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.

The department shall investigate the application. The applicant shall provide a completed application form. In addition to providing the information requested on the form, however, the applicant shall also provide such information as may be required for the department's investigation, determinations, and findings regarding the application and may provide additional information. The information provided by the applicant shall satisfy the protocols, which are study plans and criteria, established by the department for obtaining and providing the information. If an applicant provides the information, and satisfies the protocols set by the department for obtaining and providing it, the department shall review the information and may take actions to verify that the information is accurate. The department may not, except to replace inaccurate information, take actions that would require the applicant to obtain major portions of the information anew.

(2) With regard to an application:

(a) 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.

(b) 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.

(3) 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.

(4) The department shall make and file as part of the record in the matter, written findings of fact concerning all things investigated. The department shall make a summary of the record of examination, and the proposed permit if the department proposes to issue the permit, available to the public by any means reasonable, including using the register established under section 14 of this act. The department shall provide a period of at least thirty days for the public to submit comments thereon. The department shall consider the comments received and the entire record, 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 and affected federally recognized Indian tribes of such issuance.

Sec. 8. RCW 90.03.320 and 1987 c 109 s 67 are each amended to read as follows:

(1) Actual construction work shall be commenced on any project for which permit has been granted within such reasonable time as shall be prescribed by the department, and shall thereafter be prosecuted with diligence and completed within the time prescribed by the department. The department, in fixing the time for the commencement of the work, or for the completion thereof and the application of the water to the beneficial use prescribed in the permit, shall take into consideration the cost and magnitude of the project and the engineering and physical features to be encountered, and shall allow such time as shall be reasonable and just under the conditions then existing, having due regard for the public welfare and public interests affected: and, for good cause shown, it shall extend the time or times fixed as aforesaid, and shall grant such further period or periods as may be reasonably necessary, having due regard to the good faith of the applicant and the public interests affected.

(2) For the purposes of this section, "good cause" includes but is not limited to the following circumstances that prevent work completion within the prescribed period:

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

(b) Nonvoluntary service in the armed forces of the United States;

(d) Delays in securing other permits necessary to proceed with the development;

(e) A single transfer in ownership of the property;

(f) Implementation of water efficiency measures, including conservation and reclaimed water use;

(g) Encountering unanticipated physical impediments to construction; and

(h) Encountering generally depressed economic conditions.

(3) If the terms of the permit or extension thereof((,)) are not complied with, the department shall give notice by ((~~registered~~)) certified mail that ((~~such~~)) the permit will be canceled unless the ((~~holders thereof shall~~)) permittee shows cause within sixty days why the ((~~same~~)) permit should not be ((so)) canceled. If cause ((be)) is not shown, ((~~said~~)) the permit shall be canceled.

Sec. 9. RCW 90.03.260 and 1987 c 109 s 84 are each amended to read as follows:

((Each application for permit to appropriate water shall set forth the name and post office address of the applicant, the source of water supply, the nature and amount of the proposed use, the time during which water will be required each year, the location and description of the proposed ditch, canal, or other work, the time within which the completion of the construction and the time for the complete application of the water to the proposed use. If for agricultural purposes, it shall give the legal subdivision of the land and the acreage to be irrigated, as near as may be, and the amount of water expressed in acre feet to be supplied per season. If for power purposes, it shall give the nature of the works by means of which the power is to be developed, the head and amount of water to be utilized, and the uses to which the power is to be applied. If for construction of a reservoir, it shall give the height of the dam, the capacity of the reservoir, and the uses to be made of the impounded waters. If for municipal water supply, it shall give the present population to be served, and, as near as may be, the future requirement of the municipality. If for mining purposes, it shall give the nature of the mines to be served and the method of supplying and utilizing the water; also their location by legal subdivisions. All applications shall be accompanied by such maps and drawings, in duplicate, and such other data, as may be required by the department, and such accompanying data shall be considered as a part of the application.)) The department shall adopt rules in accordance with chapter 34.05 RCW by January 1, 1997, that specify the contents of completed water right application forms. The rules shall include specific timelines for the department to follow in making a determination as to whether an application is complete and notifying the applicant of its determination. The rules shall also identify the kinds of inaccuracies that render an application incomplete.

Sec. 10. RCW 90.44.060 and 1987 c 109 s 109 are each amended to read as follows:

Applications for permits for appropriation of underground water shall be made in the same form and manner provided in RCW 90.03.250 through 90.03.340, as amended, the provisions of which sections are hereby extended to govern and to apply to ground water, or ground water right certificates and to all permits that shall be issued pursuant to such applications, and the rights to the withdrawal of ground water acquired thereby shall be governed by RCW 90.03.250 through 90.03.340, inclusive((: PROVIDED, That each application to withdraw public ground water by means of a well or wells shall set forth the following additional information: (1) the name and post office address of the applicant; (2) the name and post office address of the owner of the land on which such well or wells or works will be located; (3) the location of the proposed well or wells or other works for the proposed withdrawal; (4) the ground water area, sub-area, or zone from which withdrawal is proposed, provided the department has designated such area, sub-area, or zone in accord with RCW 90.44.130; (5) the amount of water proposed to be withdrawn, in gallons a minute and in acre feet a year, or millions of gallons a year; (6) the depth and type of construction proposed for the well or wells or other works: AND PROVIDED FURTHER, That)). The department shall adopt rules in accordance with chapter 34.05 RCW by January 1, 1997, that specify the contents of completed water right application forms. The rules shall include specific timelines for the department to follow in making a determination as to whether an application is complete and notifying the applicant of its determination. The rules shall also identify the kinds of inaccuracies that render an application incomplete. Any permit issued pursuant to an application for constructing a well or wells to withdraw public ground water may specify an approved type and manner of construction for the purposes of preventing waste of said public waters and of conserving their head.

Sec. 11. RCW 90.03.250 and 1987 c 109 s 83 are each amended to read as follows:

Any person, municipal corporation, firm, irrigation district, association, corporation or water users' association hereafter desiring to appropriate water for a beneficial use shall make an application to the department for a permit to make such appropriation, and shall not use or divert such waters until he has received a permit from the department as in this chapter provided. The construction of any ditch, canal or works, or performing any work in connection with said construction or appropriation, or the use of any waters, shall not be an appropriation of such water nor an act for the purpose of appropriating water unless a permit to make said appropriation has first been granted by the department: PROVIDED, That a temporary permit may be granted upon a proper showing made to the department to be valid only during the pendency of such application for a permit unless sooner revoked by the department: PROVIDED, FURTHER, That nothing in this chapter contained shall be deemed to affect RCW 90.40.010 through 90.40.080 except that the notice and certificate therein provided for in RCW 90.40.030 shall be addressed to the department, and the department shall exercise the powers and perform the duties prescribed by RCW 90.40.030.

The department shall encourage the filing of a consolidated application for a complex project under a single ownership that proposes to divert or withdraw water from more than one source, including a combination of surface and ground water sources. The filing of a consolidated application for transfer or change of one or more water rights involving multiple sources shall also be encouraged if all of the affected diversions or withdrawals are intended to serve a single project with a single ownership. The department shall adopt and provide forms for consolidated applications.

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

(1) The department shall establish streamlined procedures for its processing of applications for de minimis appropriations of surface water, but only if the department has reserved and set aside the water for future beneficial use under RCW 90.54.050.

(2) Applications for appropriating water under this section shall be made on a form provided by the department. Within sixty days of the publication of a notice in accordance with RCW 90.03.280, the department shall issue or deny a permit for the requested appropriation. If the department denies the application, it shall explain its determination in writing.

(3) The department shall waive the evaluation and report requirements of RCW 90.03.290 if during the establishment of the reservation it was conclusively determined that water is available and that no impairment of existing water rights or the public interest will occur.

(4) This section may not be used in areas that are within urban growth areas as designated under RCW 36.70A.110 or within the service areas of a public water system as defined in chapter 70.119A RCW that has an available water supply.

(5) Unless the context clearly requires otherwise, as used in this chapter, "de minimis appropriation" means diversion and use of surface water in an amount not exceeding four hundred fifty gallons per day and not exceeding an instantaneous diversion rate of two one-hundredths cubic feet per second.

(6) The department shall develop, in cooperation with the department of health, informational materials regarding the risks of drinking untreated surface water. This informational material may be provided to prospective applicants. The department shall attach the informational materials to any permit that is approved under this section.

NEW SECTION. Sec. 13. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department may authorize short-term uses of water without publication of the notice required under RCW 90.03.280 and without the report required under RCW 90.03.290. However, before approving a short-term use, the department shall determine to its satisfaction that the substantive criteria in RCW 90.03.290 are met and that a stream affected by a short-term use will be retained with sufficient flows to maintain instream uses and to protect existing water rights. The department shall adopt and provide application forms for persons applying for a short-term use and shall expedite its consideration of short-term use requests to the extent practicable.

(2) For the purposes of this chapter, "short-term use" means a use of water that will not exceed one year in duration. Short-term uses include but are not limited to use in construction, dust control, dewatering, and short-term planned fire suppression activities.

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

The department shall establish a register that identifies, by water resource inventory area, applications for new water rights and applications for water right transfers and changes. The register shall identify: The location of the proposed use, change, or transfer; whether the application is for surface or ground water; and for ground or surface water applications, the water source. The department shall produce the register once every two weeks and shall make the register available to interested parties for a fee that is based on the cost of making the register available. One year after the effective date of this section, the department may cease production of the register if the number of requests for the register are not adequate to cover the costs of producing it.