6698-S

AN ACT Relating to locally conducted basin assessments and planning for watersheds; amending RCW 90.44.050; adding a new chapter to Title 90 RCW; and creating new sections.

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

NEW SECTION. Sec. 1. FINDINGS AND INTENT. (1) The legislature finds that in order for the state to make appropriate decisions regarding the management, protection, use, and conservation of our state's water and fishery resources, it must possess an authoritative and accurate understanding of the water quality, water quantity, water availability, and fishery habitat conditions that exist within the water basins of the state. To gain such an understanding, the legislature further finds that the state should properly fund, support, and facilitate the preparation of basin assessments for the water basins of the state.

It is the intent of the legislature that the information, data, and analysis resulting from the preparation of basin assessments be used by the department of ecology to render timely and appropriate water right decisions; to clear the backlog of pending water right applications; and to make sound and balanced resource management decisions affecting the ground and surface waters of the state's basins. It is further the intent of the legislature that the basin assessments be used by local governments for water resources planning, growth management planning, and local regulatory decisions. These assessments should also be used to support the efforts of state, tribal, and local governments, and other interested parties engaged in the initiation, development, and implementation of cooperative water basin plans. The preparation and use of basin assessments should not, however, be subject to the initiation or funding of basin planning processes.

It is further the intent of the legislature that in preparing basin assessments, the state take all reasonable steps to ensure that these assessments are developed using data, analysis, and methodologies that are scientifically sound and are subject to effective quality control and peer review mechanisms.

(2) The legislature finds that it is in the best interests of the state to plan, develop, and provide for the use, protection, and management of our state's water and water-dependent natural resources and values through the development of basin plans developed in a cooperative manner by local, state, tribal, private, public, and federal interests. The purpose of such plans should be to gain a better understanding of the health of the basin's water and water-dependent natural resources and values, to resolve uncertainties and differences regarding the condition of these resources, and to cooperatively determine the most appropriate methods by which basin resources should be used, protected, managed, restored, and enhanced.

It is further the intent of the legislature that locally based basin planning groups should at a minimum, include representatives from state government, local governments, and federally recognized tribal governments whose reservation or ceded areas are within the basin. Basin planning groups should also include and promote the participation of other interested public and private parties with a clear stake in basin resource management, including representatives from business, agriculture, environment, fisheries, community development, and recreation. All reasonable efforts should be made to include the participation of interested parties in the development of basin plans, including those with localized interests and those with regional and state-wide interests. However, should interested parties to basin planning prove unable or unwilling to engage in cooperative basin planning, the state should not discourage the development of basin plans involving other interested parties and state and local government and tribal participants.

(3) It is the intent of the legislature that the interests and rights of all persons in possession of existing water right permits, certificates, valid claim declarations, and adjudicated water rights be protected within the basin planning process.

(4) It is the intent of the legislature that existing resource management plans, agreements, and facility permits and licenses, relating to the management of water or water-dependent natural resources executed or issued before the effective date of this section shall not be made subject to reconsideration by locally based basin planning groups formed as a result of this chapter except by mutual consent of the parties to such plans, agreements, permits, and licenses.

(5) The legislature finds that it is a high priority for the state to support, provide technical assistance, and fund to the maximum extent possible, the preparation and implementation of basin plans. These plans should be prepared in cooperation with local governments, private citizens and landowners, tribal governments, federal and state agencies, and other parties residing within or having a clear interest in the status of the basin's water and fishery resources.

NEW SECTION. Sec. 2. DEFINITIONS. Unless the context clearly requires otherwise, the following definitions apply throughout this chapter:

(1) "Basin" refers to any one of the sixty-two areas in the state containing a major watershed or river basin as established in chapter 173-500 WAC.

(2) "Basin assessment" means a review and analysis of the overall environmental health, quality, water usage, and water availability of part or all of a WRIA's ground and surface waters and fishery resources.

(3) "Basin plan" means a locally developed plan that provides a comprehensive approach to the future management, use, conservation, protection, and allocation of water resources within a WRIA, river basin, or subbasin, and the means by which associated water quality and fisheries will be protected, conserved, restored, used, and managed.

(4) "Initial basin planning unit" means the governmental entities formed by the planning process initiating entities under section 204 of this act.

(5) "Planning unit," "basin planning unit," and "expanded planning unit" mean the basin planning unit formed through the procedures of section 205 of this act.

(6) "Department" means the department of ecology.

(7) "Person" means a firm, association, corporation, general purpose local government, special district, or other municipal corporation, governmental agency, as well as an individual.

(8) "Qualified governmental entity" means a general purpose local government, county, state agency, federally recognized tribe, special district, or consortium of local government and special districts that presently serves, is intended to serve, or has the authority to serve water or engage in water resource planning and management on a regional basis.

(9) "Tribe" or "tribes" means Indian tribes within Washington state that are formally recognized by the federal government.

(10) "WRIA" or "water resource inventory area" is one of sixty-two areas in the state containing a major watershed or river basin as established in chapter 173-500 WAC.

PART I

BASIN ASSESSMENTS

NEW SECTION. Sec. 1. BASIN ASSESSMENTS‑-PURPOSES. It is the intent of the legislature that basin assessments be employed by the department to achieve the following purposes:

(1) To render timely and appropriate decisions on pending and future water right applications using information and data that are based on sound hydraulic and hydrogeologic methodology and analysis;

(2) To determine the appropriate conditions to be added to permits that are issued to ensure that water-dependent natural resources and associated habitat protected;

(3) To support and coordinate the data-related study and information collection efforts of the state, local governments, special districts, tribes, and other interested parties that have initiated cooperative basin planning for the purpose of developing a basin plan or would like to commence cooperative basin planning within their basin;

(4) To enable the state, local government, tribes, and other persons to make sound and well-informed decisions relative to future land use plans and policies, capital facility plans and projects, and water resource plans and management, and fish and wildlife habitat conservation plans within a basin; and

(5) To assist property owners and the public to understand the characteristics of the water and natural resource of their local areas.

NEW SECTION. Sec. 2. PREPARATION OF ASSESSMENTS. (1) Basin assessments may be prepared for an entire WRIA, multiple WRIAs, or less than an entire WRIA, by the department, or by the department with the assistance of a qualified governmental entity that is acting as a lead entity in the development of cooperative basin plans or authorized under statute or interlocal agreement, to undertake regional studies and water supply activities. In the event a qualified governmental entity is willing to assist in undertaking a basin assessment, the department may enter an intergovernmental agreement for the cooperative preparation, that addresses duties and funding responsibilities.

(2) The department shall develop a standardized draft intergovernmental agreement that may serve as the basis for negotiating and executing a final agreement with qualified governmental entities willing to assist in undertaking basin assessments. The agreement shall describe the terms under which these entities may perform basin assessment duties, including the appropriate data collection, scientific methodology, analytical tools, quality control approach to be employed, and public and property owner review and comment.

NEW SECTION. Sec. 3. PROCESS FOR PREPARATION. (1) The preparation of basin assessments may occur in two stages, a first stage which shall be described as a level I assessment, and a second stage which shall be described as a level II assessment. A level I assessment shall at a minimum, include the following:

(a) A comprehensive collection of available data relating to a basin's ground water and surface water quantities, water availability, present and projected water uses, water quality, the health of associated water-dependent natural resources and habitat, climatic variables, including precipitation, and land use characteristics;

(b) A determination of whether the data available is sufficient for the department to declare water is available for further appropriation or insufficient to render such decisions absent additional data collection and study efforts;

(c) An identification or determination of environmental trends affecting water and water-dependent natural resources, to the extent existing data is sufficient to perform this task;

(d) An identification of data-related gaps that require further study and information before decisions can or should be made with regard to water right and resource management matters;

(e) A determination of those areas where the data collected is sufficient for the agency to make informed and authoritative water right decisions;

(f) A preliminary recommendation regarding priority areas, issues, data, analysis, and resource issues that warrant further study in a level II assessment;

(g) A minimum of two public hearings in the basin area where the data and preliminary recommendations are subject to review and comment;

(h) Circulation of data and preliminary recommendations to all state agencies, local and tribal governments in the basin, and any federal water management agencies with major water-related responsibilities in the basin or relating to return flows from the basin; and

(i) After circulation to public agencies specified in (h) of this subsection and public hearing required in (g) of this subsection, make findings and final recommendations.

(2) In the event the department determines that a level I assessment does not contain data, analysis, and other findings sufficient to make authoritative decisions with regard to water availability, water use, water quality, the status of water-dependent natural resources, and the environmental impacts of further ground or surface water appropriations, the department may undertake a level II assessment to provide the additional data, analysis, and findings necessary for the department to make timely water right and resource management decisions. The scope of work and overall study effort of a level II assessment should be guided by the data, analytical findings, public comment, and recommendations developed within a level I assessment.

(3) The department shall develop a process and procedures whereby the data, analysis, findings, and recommendations contained within level I and level II assessments are subject to effective and objective quality control standards, including but not limited to the creation of an independent peer review panel comprised of qualified persons with expertise in hydrology, hydrogeology, engineering, water quality, fishery biology, and related environmental sciences. The procedures shall afford opportunity for public review and comment.

NEW SECTION. Sec. 4. FORMAT AND ACCESS TO DATA. The department shall develop as uniform as possible a system of procedures for the entry and distribution of all data and information relating to basin assessments in all regions of the state. The procedures shall be designed to ensure that data collected by the state and other qualified governmental entities is prepared and stored on a common software system that is easily accessible to state agencies, local governments, tribal governments, and other interested parties. It shall attempt to help make water-related data of the United States geological survey available. It shall also be designed to ensure that basin assessments operate as open file documents that may be enhanced by new or additional data that has been provided to the department and reviewed and approved by the peer review mechanism cited in section 103(3) of this act. Upon the completion of a basin assessment, the department shall make electronic and hard copies of the basin assessment reports and supporting data and make such copies available for public review at the department's regional offices and department headquarters.

NEW SECTION. Sec. 5. TIMELINE FOR PREPARATION. The timeline for the preparation and completion of a level I or level II basin assessment using any state funds or grants shall be established at the onset of the process.

PART II

BASIN PLANNING

NEW SECTION. Sec. 201. BASIN PLANNING. The legislature finds that locally based basin planning is an essential major component of the process of determining the policy, regulatory, and management approaches necessary for the protection, conservation, restoration, use, and allocation of our state's water resources. In advancing cooperative basin planning, the legislature further finds that the development and implementation of basin plans can best be achieved by dividing the planning process into two phases, phase I and phase II. Under phase I, which may also be described as prescoping, state, local, and tribal governments shall identify and undertake basic data collection and coordination, needs assessments, public education, and public involvement tasks necessary to prepare and proceed to a second phase. The second phase shall involve the development of a comprehensive basin plan, including to the extent possible, the participation of those parties with a clear stake in the management, protection, and conservation of a basin's water and water-dependent natural resources.

NEW SECTION. Sec. 202. NOTICE OF INTENT TO PLAN. Phase I, or the prescoping phase of a basin planning process, shall be initiated by filing with the department a notice of intent to plan. The notice of intent shall be initiated and signed by at least two local governments responsible for substantial water resource planning, management or delivery, or one such local government and a tribe residing or asserting treaty-based interests within the basin.

NEW SECTION. Sec. 203. CONTENTS OF NOTICE. The initiating entities shall prepare the notice of intent filed under section 202 of this act and include the following in the notice:

(1) A basic description of the portion of the water resource inventory area, which may be a subWRIA, WRIA, or multiple WRIAs, proposed to be included within the regional planning area, and where appropriate, an explanation for the inclusion of more than one water resource inventory area; and

(2) Identification of public and private groups and tribal entities with a known interest in the proposed WRIA planning area and the methods by which they will be contacted and invited to participate.

NEW SECTION. Sec. 204. FORMATION OF BASIN PLANNING UNIT--PRESCOPING. (1) Within sixty days of submittal of the notice of intent to the department, the initiating entities shall call an invitational meeting of all general purpose local governments, all special districts providing water and waste water service, including those districts engaged in hydropower, industrial, or irrigation supply, state agencies with natural resource or water resource planning or management responsibilities, affected tribes, and federal agencies that have substantial water management responsibilities in the basin.

(2) Representatives from the state, local, and tribal governmental units shall be selected to form an initial basin planning unit. Once constituted, members of the basic planning unit shall designate one or more of the governmental agencies to act as lead or colead agencies. Once designated, the lead agency or agencies may administer all tasks associated with the prescoping phase and the subsequent full planning phase in sections 201 and 205 of this act, enter into contracts agreed to by the basin planning unit, coordinate intergovernmental agreements among the participating entities, and undertake basic data collection tasks, including agreements with the department to assist in preparing level I and II basin assessments, for the purpose of assisting the basin planning unit to define its overall planning objectives and recommended scope of work. The lead agency shall draw upon those staff resources made available from the state, in addition to local and tribal governments participating in the planning unit, to support its role and the work of the initial basin planning unit and expanded planning unit.

(3) The initial basin planning unit is responsible for evaluating the preliminary administrative, organizational, data collection, and coordination tasks necessary to proceed with basin planning and has one year to complete its tasks. These tasks shall include, but not be limited to the following:

(a) Identifying persons and organizations with a clear interest or stake in a comprehensive basin planning effort, including agriculture, business, environment, fisheries, and recreational interests;

(b) Identifying the potential range of policy, technical, and treaty-based issues, interests, and concerns held by the basin planning unit and other potential members of a basin planning process;

(c) Identifying, collecting, and cataloging available data relating to water quality, water quantity, current and projected water usage, and fishery resources. This task may include initiating a level I basin assessment with the department or developing preliminary findings with regard to the status of water availability, the health and status of water-dependent natural resources and habitat, and the status of water quality within the planning area;

(d) Identifying water quality, quantity, water use, and water-dependent resource data gaps requiring further data collection, analysis, and study in a level II assessment effort and developing preliminary scopes of work for level II assessment tasks that may be reviewed, evaluated, and implemented during phase II of the basin planning process;

(e) Developing an interim scope of work that identifies data collection and administrative tasks that can be funded and implemented before the commencement of full basin planning;

(f) Developing a recommended scope of work for the expanded planning unit to consider including planning objectives, schedule for performance, data, studies, modeling, analytical work products, funding requirements and potential sources, and other planning elements necessary to comply with this chapter; and

(g) A public involvement process for all phases of the effort.

(4) The initial basin planning unit shall establish its own decision-making process.

NEW SECTION. Sec. 205. COMMENCEMENT OF FULL BASIN PLANNING--FORMATION OF EXPANDED PLANNING UNIT. (1) Upon completion of the prescoping phase tasks and activities described in section 202 of this act, the initial basin planning unit shall call an invitational meeting of all local governments and special districts not participating in the basin planning unit, in addition to all other governmental agencies, interest groups and stakeholders identified in the prescoping phase including agriculture, business, environment, sport and commercial fisheries, recreation, and the general public.

(2) Within sixty days after the invitational meeting, an expanded basin planning unit shall be formed consisting of three representatives each from state agencies, local governments, including special districts, and tribes participating in the basin planning unit, one representative from each of the interest groups identified in this section, and several representatives of the general public. Each interest group shall select its representatives to the expanded basin planning unit. General public representatives shall be selected by the participating general purpose local governments. Governmental representatives shall constitute a majority of the total number of representatives participating in the expanded planning unit. An interest group not granted voting status may petition the planning unit members to secure voting status. The petition may be received up to ninety days after the invitational meeting described in this section. Decisions to add additional interest groups with voting status shall be made by a two-thirds vote of the original planning unit members. Groups not requesting voting status may participate in an ex-officio capacity at the invitation of the expanded basin planning unit.

(3) If a designated group chooses not to participate in the basin planning unit, the planning process shall continue and the nonparticipating group's position within the planning unit shall remain vacant for the duration of the planning period. If no groups, other than the governmental entities that constitute the initial basin planning unit, are either willing or able to proceed at the time of the invitational meeting, the full planning process may proceed in their absence and the initial basin planning unit should attempt to limit its scope of work to those issues, interests, resources, priorities, and water rights that are directly held by or associated with participating basin planning unit members.

(4) The period allowed for the expanded basin planning process shall be established at the onset of the process.

(5) Participants in the expanded planning unit shall seek to reach decisions by consensus.

NEW SECTION. Sec. 206. INSTREAM FLOWS. A basin planning unit, as part of the planning process, may review and recommend changes to existing instream flow levels established by regulation within the WRIA. A planning unit shall submit to the department for rule adoption, recommended instream flow levels for those rivers and streams within the WRIA where minimum flows have not been established. These recommendations shall be included in a basin plan.

NEW SECTION. Sec. 207. SCOPE OF WORK. Within one hundred twenty days after the expanded basin planning unit has been formed, it shall review the scope of work recommended by the initial basin planning unit for the purpose of making changes, additions, or deletions to the scope of work and associated work plans.

NEW SECTION. Sec. 208. PUBLIC INVOLVEMENT--SCOPE OF WORK. (1) The basin planning unit shall establish a public involvement advisory committee that is responsible for assuring public involvement. The committee's work shall include providing information and receiving comments and suggestions from the public regarding the scope of work, the projects, plans, and action of the basin planning unit, and the goals, findings, progress, and recommendations regarding the basin planning process.

(2) The basin planning unit shall conduct at least two public hearings within the WRIA planning area on the planning objectives, work plans, and scope of work before their adoption and commencement of related work.

NEW SECTION. Sec. 209. PLAN CONTENTS. (1) Before the adoption of a draft basin plan, the basin planning unit shall conduct at least two public hearings.

(2) The plan may include, but is not limited to the following:

(a) A quantitative determination of projected future uses and how much surface and ground water exists within the WRIA or basin;

(b) A quantitative determination of projected future uses and how much surface and ground water is available to meet instream and out-of-stream demands, including agricultural, fisheries, industrial, municipal, recreational, and residential uses, and the conditions and procedures under which future allocations may be made for those uses;

(d) A determination of approximately when and how much water is claimed, used, permitted, and certificated, including instream flows;

(e) Measures and plans to improve the water quality of the ground and surface water sources;

(f) Water supply planning requirements for future needs in accordance with adopted local government land use plans;

(g) Fisheries restoration and enhancement objectives and plans;

(h) Instream flow recommendations;

(i) Options and opportunities for the potential storage, recharge, and reuse of water;

(j) Land use management controls and incentives for habitat preservation and restoration;

(k) Conservation and water use efficiency measures applicable to the basin;

(l) Identification of potential interbasin issues of importance and recommended methods for resolution; and

(m) A plan for implementation, including responsible parties, funding, and schedule.

(3) The basin planning unit may prepare an environmental impact statement, if required by the county or other local legislative authority, to address the provisions of the plan.

(4) The basin planning unit shall submit the draft basin plan to all local governments with land use authority within the WRIA or basin planning area for their review. Within ninety days of receipt of the draft plan, the local governments shall determine whether or not the plan as submitted is consistent with the jurisdiction's adopted land use plans and shoreline development policies. If found inconsistent, reviewing local governments shall remand the basin plan to the planning unit and identify those provisions requiring change or conformance to local government plans and policies. Lack of available water may require local governments to modify land use or water supply plans.

(5) The planning unit shall submit the draft basin plan to the department, which shall coordinate plan distribution and receipt of comments from other state agencies. The department shall review the plan to determine consistency with existing state statutes and rules, and incorporate into any remand comments the determinations of other state agencies regarding statutes and rules under their jurisdiction. In its review capacity, the department may not reject or modify the plan, but may remand it back to the basin planning unit with comments if sections are found to be inconsistent with state or federal law. Sections that are determined by the department to be consistent with state and federal law may be implemented immediately. Should the department determine the plan is not consistent with existing state statutes or rules, it shall notify in writing the basin planning unit of the following within ninety days of receipt:

(a) Plan inconsistencies with either or both rules and statutes; and

(b) Recommendations regarding changes, to either or both the statutes and rules, required for plan implementation.

(6) Upon completion of review by the department, members of the basin planning unit shall formally adopt and implement those provisions, policies, and obligations of the plan consistent with existing laws or rules within one hundred twenty days through legally binding procedures. The adoption process by state agencies, local governments, and tribes shall occur through the adoption of resolutions, ordinances, or other methods that legally bind the parties to the terms of the plan and its provisions. State laws or ordinances found in conflict with plan provisions shall be submitted to the legislature or local government for review to determine if amendment or repeal of such laws or ordinances is in the public interest.

(7) Following adoption of the plan by the basin planning unit, the department shall expeditiously prepare a rule for incorporation into the Washington administrative code that:

(a) Reflects state approval of the plan; and

(b) Makes, where possible, all appropriate changes to existing rules that would otherwise preclude plan implementation. Where multiple requests for rule making under this subsection are pending, the department may schedule initiation of rule-making procedures to conform to available budgetary resources.

(8) The department and other state agencies shall take all appropriate action and make program and policy changes to implement the plan.

NEW SECTION. Sec. 210. GRANTS, FUNDS, AND TECHNICAL ASSISTANCE. (1) Initial basin planning units and expanded basin planning units engaged in basin planning efforts may accept state, federal, and local government grants, funds, and other financing, as well as enter into cooperative agreements with private and public entities for the purpose of developing basin plans, conducting level I and level II basin assessments, water quality and fishery data collection and analysis, facilitation, and plan implementation.

(2) The department shall support, though the provision of all possible technical and funding assistance, the efforts of basin planning units and qualified governmental entities to assist in preparing level I or level II basin assessment in WRIAs where no such assessments have been prepared.

NEW SECTION. Sec. 211. ADMINISTRATIVE RULE. The department shall, within one hundred twenty days of the effective date of this section, propose for public review guidelines for implementing the basin planning processes authorized in this chapter.

Sec. 212. RCW 90.44.050 and 1987 c 109 s 108 are each amended to read as follows:

((~~After June 6, 1945,~~)) (1) No withdrawal of public ground waters of the state shall be begun, nor shall any well or other works for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by it as herein provided: EXCEPT, HOWEVER, That any withdrawal of public ground waters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or for an industrial purpose in an amount not exceeding five thousand gallons a day, is and shall be exempt from the provisions of this section, but, to the extent that it is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued under the provisions of this chapter: PROVIDED, HOWEVER, That the department from time to time may require the person or agency making any such small withdrawal to furnish information as to the means for and the quantity of that withdrawal: PROVIDED, FURTHER, That at the option of the party making withdrawals of ground waters of the state not exceeding five thousand gallons per day, applications under this section or declarations under RCW 90.44.090 may be filed and permits and certificates obtained in the same manner and under the same requirements as is in this chapter provided in the case of withdrawals in excess of five thousand gallons a day.

(2) In any basin in which a basin plan has been adopted pursuant to section 209 of this act, a local government may adopt an ordinance to implement a provision of the plan that limits the purposes, quantity, or time period for uses of water exempted from the permit requirement under subsection (1) of this section. The local government shall seek comments upon a draft ordinance by the department for consistency with state statutes and rules prior to adoption of the ordinance.

PART III

MISCELLANEOUS

NEW SECTION. Sec. 301. PART HEADINGS AND CAPTIONS NOT LAW. Part headings and captions used in this act do not constitute any part of the law.

NEW SECTION. Sec. 302. Sections 2, 101 through 105, and 201 through 211 of this act shall constitute a new chapter in Title 90 RCW.