BP BHEAD INT S [atlas:bill]

AN ACT Relating to watershed management; amending RCW 90.82.005, 90.82.010, 90.82.020, 90.82.040, and 90.03.345; adding new sections to chapter 90.82 RCW; adding a new section to chapter 34.05 RCW; creating new sections; and declaring an emergency.

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

Sec. 1. RCW 90.82.005 and 1997 c 442 s 101 are each amended to read as follows:

The purpose of this chapter is to develop a ((~~more~~)) thorough and cooperative method ((of)) that provides local citizens the maximum possible input for: Determining what the current water resource situation is in each water resource inventory area of the state and ((~~to provide local citizens with the maximum possible input concerning their~~)) establishing goals and objectives for water resource management and development; reviewing water quality problems and recommending strategies for achieving compliance with water quality standards; and coordinating with any plans for the protection and enhancement of fish habitat.

It is necessary for the legislature to establish processes and policies that will result in providing state agencies with more specific guidance to manage the water resources of the state consistent with current law and direction provided by local entities and citizens through the process established in accordance with this chapter.

It is the intent of this chapter to provide locally based groups with the opportunity to: Assess local water supplies and needs and develop strategies to provide adequate water for economic prosperity and environmental protection while protecting existing water rights; ensure that adequate water supplies are available for population and economic growth under the requirements of the state's growth management act, chapter 36.70A RCW; review water quality problems and develop a strategy for achieving compliance with water quality standards; and coordinate plans for protection and enhancement of fish habitat.

Chapter . . ., Laws of 1998 (this act) is enacted to: Improve the ability of local governments and citizens to be involved in the design and implementation of solutions to water quantity, water quality, and habitat needs for fish species and provide an opportunity for people in all watersheds to be involved in watershed planning if they so desire; provide a flexible mechanism for conducting locally initiated watershed planning on either a single watershed basis or, if more appropriate, on a multiple watershed basis; and allow local people to determine the scope of the watershed planning process while encouraging them to consider comprehensive watershed planning that includes addressing water quantity, water quality, and habitat for fish species in concert with one another.

Thus it is the intent of the legislature for integrated watershed management to help produce: Adequate water quantity for the future, adequate water quality to protect and promote beneficial uses, and sufficient protection and enhancement of habitat so that fish resources thrive to be used and enjoyed by citizens of the state.

It is also the intent of the legislature to encourage collaboration and cooperation between the wide range of interests, and local, state, federal, and tribal governments to develop solutions to watershed problems. The state of Washington wishes to recognize and maintain formal government-to-government relationships, and it also endeavors to work cooperatively with all governmental entities and representatives of citizen groups to foster effective and practical solutions that have broad-based support. It is the intent of the legislature that all of the citizens of the state of Washington work cooperatively to ensure that the management of the state's economic destiny and environmental heritage remains in the hands of Washington's citizens as much as possible.

Nothing in this chapter may be construed as affecting or impairing existing water or property rights.

Sec. 2. RCW 90.82.010 and 1997 c 442 s 102 are each amended to read as follows:

The legislature finds that the state's vital interests are served by the wise management of the state's water resources, by protecting existing water rights and dependent economies, by protecting and enhancing instream flows and habitat for fish, and by providing for the public health and economic well-being of the state's citizenry and communities. The legislature finds that many regions of the state are facing challenges relating to water quantity, water quality, and habitat for fish species. There are a number of bodies of water in the state that do not meet federal and state water quality standards. In several areas of the state, there has been a significant decrease in the number of fish returning to state waters and there is a growing sense of urgency to protect and enhance existing fishery resources. The pressures of a growing population and expanding economy have led some local communities to seek additional water supplies for present and future needs and to seek certainty that the supplies will be available for those needs.

The legislature finds that the local development of watershed plans for managing water resources ((~~and~~)), for protecting existing water rights and dependent economies, and for protecting and enhancing habitat for fish is vital to both state and local interests. The local development of these plans serves vital local interests by placing it in the hands of people: Who have the greatest knowledge of both the resources and the aspirations of those who live and work in the watershed; and who have the greatest stake in the proper, long-term management of the resources. The development of such plans serves the state's vital interests by ensuring that the state's water resources are used wisely, by protecting existing water rights and dependent economies, by protecting instream flows for fish, by protecting or enhancing fish habitat, and by providing for the economic well‑being of the state's citizenry and communities. Therefore, the legislature believes it necessary for units of local government throughout the state to engage in the orderly development of these watershed plans.

The legislature finds that water resource and fish habitat challenges vary from region to region. The legislature also finds that, in many cases, addressing one water resource or fishery habitat issue can cause concerns and have effects in other areas; as a result, integrated watershed management may be needed to address the variety of these challenges simultaneously.

The legislature further recognizes that considerable effort for addressing many of the challenges is represented by the work, planning, projects, and activities that have already been completed by local interests regarding watershed management or have been initiated and are in various stages of completion. The legislature finds that, if new, integrated watershed management is to be initiated, it must begin with a thorough review of these completed or ongoing efforts and should incorporate their products as appropriate so as not to duplicate the work already performed or underway.

Although these challenges may require approaches that are integrated and comprehensive, the legislature finds that considerable authority currently exists to address these issues but that such authority is spread across an array of federal, state, tribal, and local governments. Integration and coordination of such authorities in ways that have support of state, local, and tribal interests will be needed to develop and implement multi-interest and comprehensive solutions. The legislature further finds that new state and federal regulatory regimes are by and large not necessary to develop good watershed management and that local authorities in particular provide a broad array of implementation tools to support good watershed management. However, the legislature finds that the key to meeting existing regulatory objectives is the involvement and support of local citizens and local governments working cooperatively with state, federal, and tribal governments. The legislature recognizes that it is unable to provide all the funding necessary for integrated watershed management to be developed throughout the entire state at once, and that as a result, watershed management will be phased in across the state over time, and that the state has an ongoing responsibility to provide funding for the watershed management described in this chapter.

Sec. 3. RCW 90.82.020 and 1997 c 442 s 103 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "City" means an incorporated city, code city, or town.

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

((~~(2)~~)) (3) "Implementing rules" for ((~~a WRIA plan~~)) integrated watershed management developed by a planning unit are the rules needed to give force and effect to the parts of the ((~~plan~~)) integrated watershed management that create rights or obligations for ((~~any party including~~)) a state agency ((~~or that establish water management policy~~)).

((~~(3)~~)) (4) "Indian tribe" means any Indian tribe, band, or nation that: (a) Is recognized as eligible, by the secretary of the interior, for the special programs and services provided by the United States to Indians because of their status as Indians; and (b) is recognized as possessing powers of self-government.

(5) "Lead agency" means the entity identified under section 9 of this act that makes provision for administrative staff support for and receives grants for a planning unit developing integrated watershed management under this chapter.

(6) "Management area" means the WRIA or the multi-WRIA area for which integrated watershed management is developed by a planning unit under this chapter.

(7) "Minimum instream flows" means ((~~a minimum~~)) flows that meet the requirements of minimum flows under chapter 90.03 or 90.22 RCW ((~~or a~~)) and base flows under chapter 90.54 RCW as adopted by rule.

((~~(4)~~)) (8) "Planning unit" means a planning unit established under section 10 of this act.

(9) "WRIA" means a water resource inventory area established in chapter 173-500 WAC as it existed on January 1, 1997.

((~~(5)~~)) (10) "Water supply utility" means a ((~~water, combined~~)) water-sewer district, irrigation district, reclamation district, or public utility district that provides water to persons or other water users within the district or a division or unit responsible for administering a publicly governed water supply system on behalf of a county.

((~~(6) "WRIA plan" or "plan~~)) (11) "Integrated watershed management" means the product of the planning unit ((~~including~~)) and includes the plan of the planning unit approved under section 11 of this act, any rules adopted in conjunction with the ((~~product~~)) plan of the planning unit, and strategies of the planning unit for implementing its plan.

NEW SECTION. Sec. 4. ELEMENTS OF MANAGEMENT‑-PRIORITY PROJECTS. (1) Counties, cities, and water supply utilities may, at their option, provide for the development of integrated watershed management for watersheds under this chapter. If initiated, such management shall be developed for water quantity components of water resource management under section 5 of this act, water quality components of water resource management under section 7 of this act, and the coordination of protection or enhancement of fish habitat under section 8 of this act. If integrated watershed management is initiated under this chapter, minimum instream flows shall be established for streams in the management area as provided in section 6 of this act. It is anticipated that a planning unit will not await the development of proposals for minimum instream flows under section 6 of this act to begin developing other components of its integrated watershed management for a management area; rather, work on these developments will be undertaken concurrently.

(2) Under this chapter, integrated watershed management may be developed by a planning unit for one or more WRIAs, but may not be developed by a planning unit for less than one WRIA except for those watersheds planned as pilot projects in the Methow and Dungeness/Quilcene areas before the effective date of this section. This chapter may not be construed to prevent or delay any planning, projects, or activities that are commenced or authorized under other laws.

(3) Integrated watershed management developed and approved under this chapter shall not contain provisions that (a) are in conflict with state statutes, federal laws, or tribal treaty rights, existing on the effective date of this section; (b) impair or diminish in any manner an existing water right evidenced by a claim filed in the water rights claims registry or a water right certificate or permit; (c) require a modification in the basic operations of a federal reclamation project with a water right the priority date of which is before the effective date of this section or alter in any manner whatsoever the quantity of water available under the water right for the reclamation project, whether the project has or has not been completed before the effective date of this section; (d) affect or interfere with an ongoing general adjudication of water rights; (e) modify or require the modification of any waste discharge permit issued under chapter 90.48 RCW; or (f) modify or require the modification of activities or actions taken to protect or enhance fish habitat if the activities or actions are: (i) Part of an approved habitat conservation plan and an incidental take permit, an incidental take statement, a management or recovery plan, or other cooperative or conservation agreement entered into with a federal or state fish and wildlife protection agency under its statutory authority for fish and wildlife protection that addresses the affected habitat; or (ii) part of an agreement regulating forest practices, which is adopted by rule by the forest practices board under the forest practices act, chapter 76.09 RCW, for the affected habitat. This subsection (3)(f) applies as long as the activities or actions continue to be taken in accordance with the plan, agreement, permit, statement, or rules. Any assessment conducted under section 5, 7, or 8 of this act shall take into consideration such activities and actions.

(4) Integrated watershed management developed and approved under this chapter shall not change existing local ordinances or existing state rules, but it may contain recommendations for changing such ordinances or rules.

(5) Once a planning unit has begun developing integrated watershed management under this chapter, the unit shall, as a matter of high priority:

(a) Review the historical geographic characteristics of the management area, and also review the planning, projects, and activities that have already been completed regarding natural resource management or enhancement in the management area and the products or status of those that have been initiated but not completed for such management in the management area, and incorporate their products as appropriate so as not to duplicate the work already performed or underway; and

(b) Identify projects and activities in the management area that the unit believes will likely serve short-term or long-term management goals and that warrant immediate financial assistance from state, federal, or local government. The planning unit shall prioritize these projects and activities in a manner that reflects the degree to which they serve the unit's goals and the costs and the benefits of undertaking them. The unit shall submit its prioritized list to the local governments with jurisdiction and, through the lead state representative on the planning unit designated under section 10(5)(j) of this act, to the legislature and the appropriate state agencies.

(6) Integrated watershed management planning conducted under sections 5, 7, and 8 of this act shall identify within the management area the actions and activities that are necessary to: Implement the provisions of the integrated watershed management, monitor the effectiveness of the implementation, and provide any needed modifications. It shall also identify the entities responsible for conducting these actions and activities. It shall also identify any entity responsible for the coordinated oversight of these responsibilities.

NEW SECTION. Sec. 5. WATER QUANTITY. Integrated watershed management established for water quantity in the management area shall include an assessment of water supply and use in the management area, including:

(1) An estimate of the surface and ground water present in the management area;

(2) An estimate of the surface and ground water available in the management area, taking into account seasonal and other variations;

(3) An estimate of the water in the management area represented by claims in the water rights claims registry, water use permits, certificated rights, existing minimum instream flow rules, federally reserved rights, and any other rights to water;

(4) An estimate of the surface and ground water actually being used in the management area;

(5) An estimate of the water needed in the future for use in the management area;

(6) An identification of the location of areas where aquifers are known to recharge surface bodies of water and areas known to provide for the recharge of aquifers from the surface;

(7) An estimate of the surface and ground water available for further appropriation, taking into account the minimum instream flows adopted by rule or to be adopted by rule for streams in the management area; and

(8) Strategies for increasing water supplies in the management area, which may include, but are not limited to, increasing water supplies through water conservation, water reuse, the use of reclaimed water, voluntary water transfers, aquifer recharge and recovery, additional water allocations, or water storage enhancements. The objective of these strategies is to supply water in sufficient quantities to satisfy the minimum instream flows and to provide water for future out-of-stream uses for water identified in subsection (5) of this section and to ensure that adequate water supplies are available for population and economic growth under the requirements of the state's growth management act, chapter 36.70A RCW. These strategies shall not be construed to be an allocation of water. If integrated watershed management is established by a planning unit under this section for water quantity components of water resource management in a management area and that management is approved by the counties under section 11 of this act but does not contain the strategies required under this subsection, all components of integrated watershed management established by the planning unit under this chapter are void.

NEW SECTION. Sec. 6. INSTREAM FLOWS. (1)(a) Except as provided in subsection (5) of this section, minimum instream flows shall be established by rule for the principle stream or streams in the WRIA or multi-WRIA area for which integrated watershed management is developed by a planning unit under this chapter. At the time a planning unit is chosen or created under section 10 of this act or initial appointments are made by cities and counties under section 10 of this act, the cities and counties in a management area may decide, as described in section 9(9) of this act, that the planning unit will not participate in identifying such flows in the management area, in which case they shall request the department to adopt rules establishing the minimum instream flows for the principle stream or streams in the management area.

(b) In all other management areas after considering in detail the assessment provided in section 5 of this act, identifying the flow regimes that make up the minimum instream flows shall be a collaborative effort between the department and the members of the planning unit developing the integrated watershed management. As these flows are developed, it shall be the duty of the department to attempt to achieve consensus among all of the members of the planning unit regarding the minimum flows to be adopted by rule by the department. Approval is achieved if:

(i) The members of the planning unit present for a recorded vote on the proposed minimum instream flows who have been appointed to represent the state through the shared ballot process described in section 10 (6) and (9) of this act, each appointed to represent tribal governments with federal Indian reservations or federally recognized ceded lands located in whole or in part within the management area or fishing rights recognized under federal case law on lands within the management area, each appointed to represent directly counties, each appointed to represent directly cities, each appointed to represent directly conservation districts, and each appointed to represent directly water supply utilities records his or her support for the proposed minimum instream flows as part of the recorded vote or abstains from voting on the proposal; and

(ii) A majority of the members of the planning unit, other than those who have been appointed to represent the entities identified in (b)(i) of this subsection, who are present for a recorded vote on proposed minimum instream flows, records support for the proposed minimum instream flows as part of the recorded vote on the proposal.

That such a recorded vote will be taken on proposed minimum instream flows shall be announced at the official meeting of the planning unit immediately preceding the official meeting of the unit at which the vote is recorded and a notice regarding voting on proposed minimum instream flows shall be sent to each member appointed to the planning unit as soon as possible following the meeting at which such an announcement is made.

(2) If approval of the planning unit is achieved on minimum instream flows proposed for a management area under subsection (1) of this section, the department shall establish those flows by rule as described in RCW 90.82.040(8).

(3) If approval is not achieved under subsection (1) of this section within four years of the date the planning unit first receives funding from the department under RCW 90.82.040, the department may promptly initiate rule making under chapter 34.05 RCW to establish minimum instream flows for these streams. The department shall have two years to establish the instream flows for these streams by rule if approval is not achieved within the four-year period provided under this subsection (3). If the planning unit did not achieve approval on establishing minimum instream flows, the planning unit may submit the vote on instream flows to the department for its consideration. Minimum flows established under this section, including minimum instream flows established by the department under this subsection when approval is not achieved, shall have a priority date of two years after the planning unit first received funding from the department under RCW 90.82.040.

(4) If minimum instream flows have been adopted by rule for a stream in the management area and the cities and counties do not, under section 9 of this act, request the planning unit or the department to modify those flows, minimum instream flows for the stream shall not be modified for the stream under this chapter. If the cities and counties request, under section 9 of this act, that the planning unit modify the minimum instream flows for the stream but approval is not achieved under this section for modifying those flows, minimum instream flows shall not be modified for the stream under this chapter.

(5) Nothing in this chapter either: (a) Affects the department's authority to establish flow requirements or other conditions under RCW 90.48.260 or the federal clean water act (33 U.S.C. Sec. 1251 et seq.) for the licensing or relicensing of a hydroelectric power project under the federal power act (16 U.S.C. Sec. 791 et seq.); or (b) affects or impairs existing instream flow requirements and other conditions in a current license for a hydroelectric power project licensed under the federal power act.

(6) Minimum instream flows shall not be proposed or adopted for the main stem of the Columbia river or the main stem of the Snake river under this chapter.

(7) A planning unit may consider identifying how minimum instream flows could be modified in response to the successful implementation of other elements of the integrated watershed management.

(8) As used in this section, the "principal stream or streams" are, in a management area for which the department is requested by cities and counties to adopt minimum instream flows under subsection (1)(a) of this section, the streams determined by the department to be the principal stream or streams. In any other management area, the "principal stream or streams" are the main stem of the stream with the largest annual average flow in each WRIA in the management area; and the major tributaries to such a main stem and any other streams in the management area that are determined to be principal streams by the planning unit by a majority vote of the planning unit. "Principal stream or streams" does not include streambeds that are used as laterals for irrigation and are nonfish-bearing.

(9) Nothing in this chapter may be construed as affecting or impairing in any manner whatsoever water rights existing before the effective date of this section.

NEW SECTION. Sec. 7. WATER QUALITY. Integrated watershed management established for water quality in the management area shall include the following components:

(1) An examination based on existing studies conducted by federal, state, and local agencies of the degree to which legally established water quality standards are being met in the management area;

(2) An examination based on existing studies conducted by federal, state, and local agencies of the causes of water quality violations in the management area, including an examination of information regarding pollutants, point and nonpoint sources of pollution, and pollution-carrying capacities of water bodies in the management area. The analysis shall take into account seasonal stream flow or level variations, natural events, and pollution from natural sources that occurs independent of human activities;

(3) An examination of the uses of each of the nonmarine bodies of water in the management area and an identification of the beneficial uses of each for water quality classification purposes;

(4) An identification of the class of use for nonmarine bodies of water and for basin-specific water quality standards that may be adopted by rule by the department and recommendations for the water quality standards to be adopted for those bodies of water;

(5) A recommended strategy for achieving compliance with water quality standards for the nonmarine bodies of water in the management area; and

(6) Recommended means of monitoring by appropriate government agencies whether actions taken to implement the strategy bring about improvements in water quality that are sufficient to achieve compliance with water quality standards.

This chapter does not obligate the state to undertake analysis or to develop strategies required under the federal clean water act (33 U.S.C. Sec. 1251 et seq.).

NEW SECTION. Sec. 8. HABITAT. Integrated watershed management shall be coordinated, or as needed, developed to protect or enhance fish habitat in the management area by relying on existing laws and rules adopted under habitat planning processes such as the habitat work plans prepared under chapter . . ., Laws of 1998 (Engrossed Substitute House Bill No. 2496) and other existing plans created for the purpose of protecting, restoring, or enhancing fish habitat, the shoreline management act, chapter 90.58 RCW, the growth management act, chapter 36.70A RCW, and the forest practices act, chapter 76.09 RCW. Management established under this section shall be integrated with strategies developed under other processes to respond to potential and actual listings of salmon and other fish species as being threatened or endangered under the federal endangered species act, 16 U.S.C. Sec. 1531 et seq. Integrated watershed management developed for such purposes shall include the following components:

(1) An analysis of the potential for protecting or enhancing fish habitat in the management area;

(2) An identification of fish habitat protection or enhancement activities and projects and voluntary transactions, including but not limited to those providing for the purchase of fish habitat or fish habitat easements, that would provide the greatest benefit to such habitat in the management area. Where habitat work plans developed under chapter . . ., Laws of 1998 (Engrossed Substitute House Bill No. 2496) are available or are intended to be developed, the planning shall rely on those plans;

(3) Recommended means of ensuring that the activities, projects, and transactions identified under subsection (2) of this section will be undertaken. Where habitat work plans developed under chapter . . ., Laws of 1998 (Engrossed Substitute House Bill No. 2496) are available or are intended to be developed, the planning shall rely on those plans; and

(4) Recommended means of monitoring the effect of undertaking the activities, projects, and transactions identified under subsection (2) of this section on protecting or enhancing fish habitat in the management area.

NEW SECTION. Sec. 9. INITIATING INTEGRATED WATERSHED MANAGEMENT. The following is the procedure by which the development of integrated watershed management may be initiated under this chapter.

(1) The following entities may decide that integrated watershed management should be considered: (a) The county with the largest area within the boundaries of a single WRIA or multi-WRIA proposed management area; (b) the county with the largest area bordering on the main stem of the stream with the largest annual flow, not including the Columbia or Snake rivers, within the boundaries of a single or multi-WRIA; (c) the city, if there is one, within the proposed management area using the largest amount of water from within the proposed management area; (d) the city, if there is one, cumulatively diverting the largest amount of water from within the proposed management area; and (e) the water supply utility, if there is one, that provides the largest quantity of water in the proposed management area.

(2) If entities in subsection (1) of this section decide jointly and unanimously to proceed, they shall invite the Indian tribe, if there is one, with the largest reservation within the proposed management area to participate in integrated watershed management.

(3) The entities in subsection (1) of this section, including the tribe if it affirmatively accepts the invitation, constitute the initiating governments for the purposes of this section.

(4) On behalf of the initiating governments, the county with the largest area within the boundaries of the proposed management area shall convene a public meeting in the affected area to discuss the appointment of a planning unit for developing integrated watershed management under this chapter. Notices of the meeting shall be sent to:

(a) County governments with territory in the proposed management area;

(b) The cities of each county located in and cities that receive water from the proposed management area;

(c) Tribal governments of federal Indian reservations or federally recognized ceded lands located in whole or in part within the boundaries of the proposed management area;

(d) Water supply utilities located in and water supply utilities that receive water from the proposed management area;

(e) Conservation districts with territory in the proposed management area;

(f) Groups and entities that have been or are currently engaged in public planning processes within the proposed management area that involve water quantity, water quality, or habitat restoration activities. In providing this notice, the county shall make a reasonable attempt to identify and notify groups and entities that within the last five years have been or are currently engaged in such planning; and

(g) The department, which shall notify other appropriate state agencies, appropriate Indian tribes, and appropriate federal agencies.

The notice shall contain the purpose, time, and location of the meeting. The notice shall also be published at least once a week for two consecutive weeks in a newspaper of general circulation in the proposed management area. The notice that is published in the newspaper shall invite members of the general public to participate.

(5) The purpose of the public meeting is to obtain comments regarding initiating the development of integrated watershed management under this chapter, the coordination of that process with ongoing planning processes and activities in the watershed, and the creation of a planning unit to prepare the integrated watershed management.

(6) For developing integrated watershed management under this chapter, the county with the largest area within the boundaries of the proposed management area is the lead agency for the development of the integrated watershed management, unless the initiating governments as defined in subsection (3) of this section approve the designation of another governmental agency as the lead agency. Such a governmental agency shall act as the lead agency for this purpose if it agrees in writing to accept the designation.

(7) At or following the public meeting, the county that convened the meeting shall call for a vote of the initiating governments as defined in subsection (3) of this section as to whether to proceed with the development of integrated watershed management under this chapter in the proposed management area. If initiating governments approve proceeding with the development of such management, the lead agency shall make application to the department for funding to develop integrated watershed management under this chapter.

(8) The initiating governments as defined in subsection (3) of this section may choose the type of planning unit to be used for developing integrated watershed management under this chapter in the proposed management area under section 10 of this act.

(9) At the time a planning unit is chosen or created under section 10 of this act or initial appointments are made by cities and counties under section 10 of this act, the cities and counties in a management area may: (a) Decide that the planning unit will not participate in identifying such flows in the management area, in which case they shall request the department to adopt rules establishing the minimum instream flows for the principal stream or streams in the management area; or (b) if minimum instream flows have been adopted by rule for a stream in the management area, request either the planning unit or the department to modify those flows. To approve an action for these purposes, the cities must approve the action by majority vote, with each city having one vote, and the counties must approve the action by unanimous vote, with each county having one vote. The vote of each city and each county shall be the vote assigned directly, in person or in writing, by the elected officials of the city and directly, in person or in writing, by the members of the legislative authority of the county. For this purpose, the "elected officials" of a city are the members of the city's legislative authority and, if applicable, its elected mayor.

NEW SECTION. Sec. 10. PLANNING UNIT‑-APPOINTMENT‑-OPTIONS. (1) If the initiating governments approve proceeding with the development of integrated watershed management for a management area as described in section 9(7) of this act, the development of such management will be conducted under this chapter in the single WRIA or multi-WRIA management area by one planning unit. As provided in subsections (2) and (3) of this section, the initiating governments may choose an existing planning group as the basis for local representation on the planning unit or they may identify the composition of a new group as the basis for local representation on the planning unit. Such a choice shall be made as described in section 9(9) of this act. If the initiating governments do not choose such an existing or new group in this manner, the planning unit to be used for developing the integrated watershed management for the management area is the planning unit specified in subsections (5) through (10), (12), and (13) of this section.

(2) If the initiating governments choose an existing planning group as the basis for local representation on a planning unit, the planning group shall have been in existence for at least one year before being so chosen. To be considered, the representation of governmental entities and interest groups on such a planning group must be generally similar to the representation identified in subsections (5)(a) through (g) and (12) of this section, or the planning group shall have a statutorily specified membership. If the initiating governments find that the existing group has the required composition and find that the scope of the group's work is or has been appropriate considering the tasks to be given the planning unit under this chapter, the initiating governments may designate the group as the basis for local participation on the planning unit. The existing group chosen in this manner plus the membership specified in subsection (5)(j) of this section and any membership provided under subsection (5)(i) of this section, which provide for representation by state and tribal governments, constitute the planning unit for developing integrated watershed management under this chapter in the management area.

(3) The initiating governments may choose as the basis for local participation on the planning unit under this chapter a new planning group tailored to the specific geographic area for which integrated watershed management will be developed. The initiating governments shall ensure that the members of the planning unit represent diverse interests, and shall include the interests represented by a planning unit that would be appointed under subsections (5)(a) through (g) and (12) of this section. If the initiating governments designate a new planning group as the basis for local participation on the planning unit, the new group plus the membership specified in subsection (5)(j) of this section and any membership provided under subsection (5)(i) of this section, which provide for representation by state and tribal governments, constitute the planning unit for developing integrated watershed management under this chapter in the management area.

(4) If an existing or new group is designated under subsection (2) or (3) of this section as the basis for local participation on the planning unit, the group and therefore the planning unit it is a part of: Shall have membership positions that directly represent cities in whole or in part in the management area and these positions shall be clearly identified as such; and shall have membership positions that directly represent counties with territory in the WRIAs that make up the management area and these positions shall be clearly identified as such. The initiating governments designating a new group as the basis for local participation on the planning unit may identify a subcommittee structure for the planning unit, but the authorities granted to a planning unit by this chapter may only be exercised by the full planning unit. Any of the cities or counties that are entitled to have a membership position on the planning unit may choose not to participate in the planning unit.

(5) Unless a planning unit is created as provided in subsection (2) or (3) of this section, the planning unit that develops integrated watershed management in a single WRIA management area under this chapter shall be composed of the following:

(a) One member representing each county with territory in the WRIA appointed by the county;

(b) One member representing cities for each county with territory in the WRIA appointed by the cities within that county;

(c) One member representing water supply utilities for each county with territory within the WRIA, appointed jointly by the three largest water supply utilities in the county;

(d) One member representing all conservation districts with territory within the WRIA appointed jointly by those districts;

(e) Three members representing major interests in the WRIA appointed jointly by the cities with territory within the WRIA; three members representing major interests in the WRIA appointed jointly by the counties with territory within the WRIA; and three members representing major interests in the WRIA, appointed jointly by the cities and counties with territory within the WRIA;

(f) One member representing the general citizenry appointed jointly by the cities with territory within the WRIA;

(g) One member representing the general citizenry appointed jointly by the counties with territory in the WRIA;

(h) Two members representing the general citizenry appointed jointly by the cities and counties, one of whom shall be a holder of a water right certificate and one of whom shall be a holder of a water right for which a statement of claim was in the state's water rights claims registry before January 1, 1997;

(i) If one or more federal Indian reservations, including the initiating tribe, if there is one, are located in whole or in part within the boundaries of the management area, or if one or more Indian tribes located in this state have federally recognized ceded land within the management area or fishing rights recognized under federal case law on lands within the management area, the planning unit shall promptly extend an invitation to the tribal government of each such reservation to appoint one member representing that tribal government and to the tribal government of each such Indian tribe to appoint one member representing that tribe; and

(j) One member representing each of the following state agencies: The department of transportation, the department of fish and wildlife, the department of ecology, and the department of natural resources.

(6) The four members representing state agencies under subsection (5)(j) of this section shall have a total of two votes in any voting done by the planning unit. One of these votes shall be shared by the department of natural resources and the department of fish and wildlife; the other vote shall be shared by the department of ecology and the department of transportation. Of these members, the governor shall appoint one lead state representative whose duty it is to ensure that state government ultimately speaks with one voice in developing integrated watershed management under this chapter, to coordinate the state's participation on the planning unit, and to secure and coordinate under section 15 of this act the technical assistance provided by the state to the planning unit.

(7) In addition, for a WRIA located within Pierce, King, Snohomish, or Spokane county, one representative of the water purveyor using the largest amount of water from the WRIA shall be a voting member of the planning unit whether the principal offices of the purveyor are or are not located within the WRIA.

(8) Unless a planning unit is created as provided in subsection (2) or (3) of this section, the planning unit that develops integrated watershed management in a multi-WRIA management area under this chapter shall be composed of the following:

(a) One member representing each county with territory in the multi-WRIA area appointed by that county;

(b) One member representing cities for each county with territory in the multi-WRIA area appointed by the cities within that county;

(c) One member representing water supply utilities for each county with territory within the multi-WRIA area appointed jointly by the three largest water supply utilities in each county;

(d) Up to two members, as that number is determined by the districts, representing all conservation districts with territory within the multi-WRIA area and appointed jointly by those districts;

(e) Three members representing major interests in the management area appointed jointly by the cities with territory within the multi-WRIA area; three members representing major interests in the management area appointed jointly by the counties with territory within the multi-WRIA area; and three members representing major interests in the management area appointed jointly by the cities and counties with territory within the multi-WRIA area;

(f) One member representing the general citizenry appointed jointly by the cities with territory within the multi-WRIA area;

(g) One member representing the general citizenry appointed jointly by the counties with territory in the multi-WRIA area;

(h) Two members representing the general citizenry appointed jointly by the cities and the counties, one of whom shall be a holder of a water right certificate and one of whom shall be a holder of a water right for which a statement of claim was in the state's water rights claims registry before January 1, 1997;

(i) If one or more federal Indian reservations, including the initiating tribe if there is one, are located in whole or in part within the boundaries of the management area, or if one or more Indian tribes located in this state have federally recognized ceded land within the management area or fishing rights recognized under federal case law on lands within the management area, the planning unit shall promptly extend an invitation to the tribal government of each such reservation to appoint one member representing that tribal government and to the tribal government of each such Indian tribe to appoint one member representing that tribe; and

(9) The four members representing state agencies under subsection (8)(j) of this section shall have a total of two votes in any voting done by the planning unit. One of these votes shall be shared by the department of natural resources and the department of fish and wildlife; the other vote shall be shared by the department of ecology and the department of transportation. Of these members, the governor shall appoint one lead state representative whose duty it is to ensure that state government ultimately speaks with one voice in developing integrated watershed management under this chapter, to coordinate the state's participation on the planning unit, and to secure and coordinate under section 15 of this act the technical assistance provided by the state to the planning unit.

(10) In addition, for a multi-WRIA planning unit located within Pierce, King, Snohomish, or Spokane county, one representative of the water purveyor using the largest amount of water from the multi-WRIA area shall be a voting member of the planning unit whether the principal offices of the purveyor are or are not located within the multi-WRIA area.

(11) Each planning unit may invite representatives of federal agencies with jurisdiction over the subject matter for which integrated watershed management is being developed by the unit and the managers of major federal lands located within the management area to assist the planning unit by participating in the development of integrated watershed management by the unit under this chapter. Such representatives shall not be considered to be voting members of the planning unit.

(12) In appointing persons to a planning unit representing major interests in the management area, the cities and counties shall ensure that economic and environmental interests and instream and out-of-stream interests in water, in the management area are represented. In doing so, the cities and counties shall consult with each other regarding the representation each is providing and may consider industrial water users, general businesses, hydroelectric and thermal power producers, and irrigated agriculture, nonirrigated agriculture, forestry, recreation, environmental, and recreational and commercial fisheries interest groups, and other groups with interests in the management area.

(13) If a single WRIA or multi-WRIA management area does not contain a city within its boundaries, the county shall make all the appointments that a city would make under this section.

NEW SECTION. Sec. 11. DECISIONS‑-HEARINGS‑-APPROVAL. (1) The planning unit shall attempt to achieve consensus among the members of the planning unit in developing the components of its proposed integrated watershed management under section 5, 7, or 8 of this act.

(2) Decisions regarding setting minimum instream flows shall be made as described in section 6 of this act. Whether the minimum instream flows set for streams in the management area are or are not added as an express component of the planning unit's integrated watershed management for the management area may be determined by the planning unit, but adding or not adding the component does not affect the decisions made under section 6 of this act regarding minimum instream flows.

(3) As part of its integrated watershed management, the planning unit may choose to develop drafts of state administrative rules and local ordinances that would be needed to give force and effect to the parts of its integrated watershed management that would create rights or obligations for any party. If it so chooses, it may also request the appropriate state agencies, units of tribal government, and units of local government to assist it in drafting the rules and ordinances. If the planning unit requests a state agency to provide such assistance, the state agency shall provide the assistance.

(4)(a) Upon completing its proposed integrated watershed management for the management area, the planning unit shall publish notice of and conduct at least one public hearing in each county in the management area on the proposal. The planning unit shall take care to provide notice of the hearing throughout the management area. As a minimum, the notice shall be published in one or more newspapers of general circulation in the management area. After considering the public comments and making any changes in its proposal, the planning unit may approve the proposal by the process provided for in (b) and (c) of this subsection.

(b)(i) The department and the tribal government with federal Indian reservation land located within the management area shall provide advice as to any specific components of the watershed management that the department or tribe believes to be in conflict with state or federal law, and may provide other recommendations regarding the watershed management. The department or tribe shall transmit its advice and recommendations within forty-five days of receiving it for review. The planning unit shall consider each recommendation provided by the department or tribe under this subsection. The planning unit may adopt the recommendation or provide changes to respond to the advice of the department or tribe by achieving approval by a vote of the members of the planning unit.

(ii) If the planning unit fails to adopt the department's or tribal council's recommendations regarding components of the watershed management that conflict with state or federal law, the department and the planning unit shall submit the dispute to mediation. If mediation does not resolve the dispute within forty-five days, the department shall file a petition for declaratory judgment in the superior court of the county with the largest area in the WRIA or multi-WRIA governed by the watershed management. The superior court shall review the dispute under the error of law standard. If the superior court finds that a component of the plan conflicts with state or federal law, that component of the plan is invalid. Decisions on such petitions are reviewable as in other civil cases. This subsection shall not be construed to establish state liability for any other component of the watershed management adopted as rules.

(c) Approval among the members of the planning unit is achieved if the members of the planning unit present for a recorded vote on the proposal appointed to represent the state through the shared ballot process described in section 10 (6) and (9) of this act, each appointed to represent tribal government with federal Indian reservation land located in the WRIA, each appointed to represent directly counties, each appointed to represent water supply utilities, each appointed to represent conservation districts, and each appointed to represent directly cities records his or her support for the proposed integrated watershed management as part of a recorded vote on the proposal.

(d) Approval among the members of the planning unit appointed to represent major interests in the management area and general citizenry components of the planning unit is achieved if a majority of the members of the planning unit, other than those described in (b) of this subsection, present at the recorded vote on the proposal records support for the integrated watershed management as a part of the recorded vote.

(e) If the watershed management is approved by the planning unit, the unit shall submit the watershed management to the counties with territory within the management area.

(f) If the watershed management is not approved by the planning unit following a vote, then the planning unit shall submit the watershed management to mediation in an attempt to achieve agreement between the members of the planning unit. If the unit is unable to reach an agreement that will achieve approval within forty-five days after submitting the dispute to mediation, the planning unit may either submit the components of the watershed management in which agreement was achieved to the county for approval or terminate the process.

(5) The legislative authority of each of the counties with territory within the management area shall provide public notice for and conduct at least one public hearing in each county on the approved watershed management submitted to the county under this section. The counties shall take care to provide notice of the hearings throughout the management area. As a minimum, the notice shall be published in one or more newspapers of general circulation in the management area. After the public hearings, the legislative authorities of these counties shall convene in joint session to consider the watershed management. The counties may approve or reject the watershed management, but may not amend it. Approval of a watershed management or of recommendations for a watershed management that are not approved shall be made by a majority vote of the members of the legislative authorities of each of the counties with territory in the management area.

(6) If the watershed management is not approved by the counties, it shall be returned to the planning unit with recommendations for revisions. If the revisions are approved by the planning unit, the watershed management shall be returned to the county for adoption. Approval of such a revised proposal shall be made in the same manner provided for the original integrated watershed management. If the revisions are not approved by the planning unit, the planning unit and the counties shall submit the revisions to mediation in an attempt to reach an agreement that will achieve approval by the planning unit and the counties. If approval of the planning unit is achieved after mediation, the watershed management shall be returned to the county for adoption. If the planning unit is unable to achieve agreement following mediation, it may either submit the components of the watershed management in which agreement was achieved to the county for approval or terminate the process. The department shall proceed with adopting the approved watershed management through a rules adoption process described in RCW 90.82.040(8).

(7) Before the adoption of the watershed management by the county legislative authority, the county shall transmit a copy of the watershed management to each city located in the WRIA. The cities shall hold a public hearing on the watershed management. The city shall publish notice of the hearing in a newspaper of general circulation in the city at least three days before the hearing. The city has forty-five days after receiving the watershed management from the county to consider passage of a resolution that expresses agreement with the watershed management or express any concerns with the watershed management with the county.

(8) At a minimum, the planning unit shall not add a component to its integrated watershed management that creates an obligation for state government unless the members of the planning unit appointed to represent state government agree to adding the component; it shall not add a component that creates an obligation for a tribal government unless the member or members of the planning unit appointed to represent that tribal government agree to adding the component; it shall not add a component that creates an obligation for a county, city, conservation district, or water supply utility unless the members of the planning unit appointed to represent the county, city, conservation district, or water supply utility agree to adding the component. A member's agreeing to add a component shall be evidenced by a recorded vote of all members of the planning unit in which the members record support for adding the component. If integrated watershed management is approved by the planning unit and the counties for a management area under this section and that management creates obligations for agencies of state government, the obligations are binding on the state agencies and the agencies shall adopt implementing rules and take other actions to fulfill their obligations as soon as possible.

NEW SECTION. Sec. 12. MEMBERSHIP‑-OTHER RULES. (1) A vacancy on a planning unit shall be filled by appointment in the same manner prescribed for appointing the position that has become vacant. The planning unit shall not interrupt its work to await additional original appointments or appointments to fill any vacancies that may occur in its membership.

(2) No person who is a member of a planning unit for a management area under this chapter may designate another to act on behalf of the person as a member or to attend as a member a meeting of the unit on behalf of the person. If a member of such a planning unit is absent from more than five meetings of the planning unit that constitute twenty percent or more of the meetings that have been conducted by the planning unit while the person is a member of the unit, the member's position on the planning unit is vacated.

(3) For the purposes of this chapter, a county or conservation district is considered to have territory within a management area only if the territory of the county or district located in one of the WRIA's in the management area constitutes at least fifteen percent of the area of the WRIA.

Sec. 13. RCW 90.82.040 and 1997 c 442 s 105 are each amended to read as follows:

(1) ((Once a WRIA planning unit has been organized and designated a lead agency, it shall notify the department and may apply to the department for funding assistance for conducting the planning. Funds shall be provided from and to the extent of appropriations made by the legislature to the department expressly for this purpose.

(2) Each planning unit that has complied with subsection (1) of this section is eligible to receive fifty thousand dollars for each WRIA to initiate the planning process. The department shall allocate additional funds to WRIA planning units based on need demonstrated by a detailed proposed budget submitted by the planning unit for carrying out the duties of the planning unit. Each WRIA planning unit may receive up to two hundred fifty thousand dollars for each WRIA during the first two-year period of planning, with a maximum allocation of five hundred thousand dollars for each WRIA.)) The department shall develop and administer a grant program to provide direct financial assistance to planning units for the preparation of integrated watershed management under this chapter. Three separate grants may be awarded pursuant to this section. These grants are initial organizing grants, grants for watershed assessments, and grants for the development of integrated watershed management, establishment of instream flows, and implementation. The total amount of the grants may not exceed five hundred thousand dollars for each WRIA. The department may not impose any local matching fund requirement as a condition for grant eligibility or as a preference for receiving a grant.

(2) An initial organizing grant of up to fifty thousand dollars may be awarded to a lead agency that applies to the department and indicates that integrated watershed management is to be developed under this chapter. Organizing grants may be expended for any purpose authorized by the department, including but not limited to determining the scope of work to be addressed by the integrated watershed management for the management area; collecting and reviewing relevant studies and plans that already exist for the watershed, including growth management related plans in which critical areas have been designated pursuant to chapter 36.70A RCW; determining how the integrated watershed management for a management area can be coordinated with existing studies and plans; and baseline monitoring of water within the watershed.

(3)(a) A watershed assessment grant of up to two hundred thousand dollars for each WRIA may be awarded to a planning unit that certifies to the department that it adequately represents a broad range of interests within the watershed, and that it is willing to undertake the following as part of its integrated watershed management for its management area: Integrated watershed management for the protection or enhancement of habitat, integrated watershed management for water quantity, and integrated watershed management for water quality. The planning unit must submit a detailed proposed budget that demonstrates the need for the grant.

(b) Grants awarded pursuant to this subsection (3) shall be awarded for a four-year period. The four-year time period shall begin to run when the lead agency for the planning unit first received the initial organizing grant under subsection (2) of this section. For a planning unit that did not submit an application for an initial organizing grant, the four-year time period shall begin to run when the planning unit receives a grant under this subsection (3).

(4) A management development, instream flow, and implementation grant in an amount of up to two hundred fifty thousand dollars for each WRIA may be awarded to a planning unit that submits evidence that an assessment of the watershed has been adequately prepared in sufficient detail for the purposes for which the watershed assessment grant was awarded; the integrated watershed management that will be developed for the management area will not be in conflict with federal laws, state statutes, or tribal treaty rights; and its development will be coordinated with adjacent jurisdictions for purposes of minimum instream flows and water quality, if water quality was addressed as part of the watershed assessment. The planning unit must submit a detailed proposed budget that demonstrates the need for the grant. Any moneys awarded from the remaining grant balance for implementation in a management area under this section are available only for implementation that commences after integrated watershed management has been adopted for the area under section 11 of this act.

(5)(a) The department shall use the following eligibility criteria instead of rules when evaluating grant applications at each stage of the grants program:

(i) The application has documented that the planning unit meets all of the requirements of this chapter;

(ii) The application demonstrates a need for state planning funds to accomplish the objectives of the planning process; and

(iii) The application and supporting information evidences a readiness to proceed.

(b) In ranking grant applications submitted at each stage of the grants program except for the initial organizing grant under subsection (2) of this section, the department shall give preference to applications in the following order of priority:

(i) Applications from existing planning groups that have been in existence for at least one year;

(ii) Applications from multi-WRIAs that propose to address protection and enhancement of fish habitat in watersheds that have aquatic species listed as endangered or threatened under the federal endangered species act, 16 U.S.C. Sec. 1531 et seq. and for which there is evidence of an inability to supply adequate water for population and economic growth;

(iii) Applications from single WRIAs that propose to address protection and enhancement of fish habitat in watersheds that have aquatic species listed as endangered or threatened under the federal endangered species act, and for which there is evidence of an inability to supply adequate water for population and economic growth;

(iv) Applications from multi-WRIAs that propose to address protection and enhancement of fish habitat in watersheds that have aquatic species listed as endangered or threatened under the federal endangered species act; and

(v) Applications from single WRIAs that propose to address protection and enhancement of fish habitat in watersheds that have aquatic species listed under the federal endangered species act.

(6) Funding provided under this section shall be considered a contractual obligation against the moneys appropriated for this purpose.

((~~(3) Preference shall be given to planning units requesting funding for conducting multi-WRIA planning under section 108 of this act.~~

~~(4)~~)) (7) The department may retain up to one percent of funds allocated under this section to defray administrative costs.

(8) The department may adopt its implementing rules for an integrated watershed management that have been approved by counties as part of integrated watershed management and may adopt rules when necessary to implement this section or section 6(2) of this act either by the regular rules adoption process provided in chapter 34.05 RCW, the expedited rules adoption process as set forth in RCW 34.05.230, or through a rules adoption process that uses the public hearings and notice provided by the planning unit and the county legislative authority as a substitute for the rules adoption requirements of chapter 34.05 RCW. If the planning unit and county legislative authority hearings and notice are used as a substitute for the regular rules adoption process, the rules do not take effect until they are published in the Washington state register as provided in chapter 34.05 RCW. Such rules do not constitute significant legislative rules as defined in RCW 34.05.328, and do not require the preparation of small business economic impact statements.

NEW SECTION. Sec. 14. A new section is added to chapter 34.05 RCW to read as follows:

Rules adopted by the department of ecology pursuant to RCW 90.82.040(8) are exempt from the requirements of this chapter to the extent provided in RCW 90.82.040(8).

NEW SECTION. Sec. 15. TECHNICAL ASSISTANCE. (1) The lead state representative on a planning unit designated under section 10(5)(j) of this act shall establish a program to provide technical assistance to planning units and local governments to encourage and facilitate the adoption and implementation of integrated watershed management for management areas developed under this chapter. The program shall use existing requirements or standards that must be satisfied by the integrated watershed management developed under this chapter and no part of the program may have the effect of a rule adopted under chapter 34.05 RCW.

(2) The program shall use any staff assigned by the governor for this task, the staff of state agencies, and staff from institutions of higher education to assist in the development of integrated watershed management under this chapter, including but not limited to assistance in determining and explaining how best available science will be incorporated into integrated watershed management for a management area, developing methods for effectively monitoring performance, providing the criteria that represents acceptable performance for key elements of the integrated watershed management for a management area, and the method of reporting performance to the public, local communities, and the state. In providing assistance under this section, the lead state representative shall recognize regional and local variations that exist in different parts of the state.

(3) The lead state representative on a planning unit shall assist planning units in ensuring that integrated watershed management developed under this chapter is coordinated with, and consistent with, the integrated watershed management of other planning units that share common borders or major stream basins. The state shall provide mediation services to resolve disputes between planning units.

(4) The department may contract out technical assistance if the lead state representative finds that it is cost-effective and will assist in implementing the intent of this chapter.

(5) The department shall conduct an annual workshop for planning units to share successful approaches, as well as difficulties, in addressing specific problems within watersheds.

(6) All state agencies with rule-making authority for programs that affect the development and implementation of integrated watershed management developed under this chapter shall review those rules and programs for consistency with this chapter and make recommendations to the legislature for any necessary statutory changes.

Sec. 16. RCW 90.03.345 and 1979 ex.s. c 216 s 7 are each amended to read as follows:

(1) The establishment of reservations of water for agriculture, hydroelectric energy, municipal, industrial, and other beneficial uses under RCW 90.54.050(1) or minimum flows or levels under RCW 90.22.010 or 90.54.040 shall constitute appropriations within the meaning of this chapter with priority dates as of the effective dates of their establishment. Whenever an application for a permit to make beneficial use of public waters embodied in a reservation, established after September 1, 1979, is filed with the department of ecology after the effective date of such reservation, the priority date for a permit issued pursuant to an approval by the department of ecology of the application shall be the effective date of the reservation.

(2) Minimum flows established under section 6 of this act shall have a priority date as specified in that section.

NEW SECTION. Sec. 17. Captions used in this act are not part of the law.

NEW SECTION. Sec. 18. Sections 4 through 12 and 15 of this act are each added to chapter 90.82 RCW.

NEW SECTION. Sec. 19. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION. Sec. 20. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1998, in the omnibus appropriations act, this act is null and void.