S-0482.1  _______________________________________________


                         SENATE BILL 5026



State of Washington      55th Legislature     1997 Regular Session


By Senator Swecker


Read first time 01/13/97.  Referred to Committee on Agriculture & Environment.


Adjudicating water rights.

    AN ACT Relating to general adjudication proceedings for water rights; and amending RCW 90.03.160, 90.03.170, 90.03.190, 90.03.200, 90.03.210, and 90.03.243.




    Sec. 1.  RCW 90.03.160 and 1989 c 80 s 1 are each amended to read as follows:

    (1) Upon the completion of the service of summons as hereinbefore provided, the superior court in which said proceeding is pending shall make an order referring said proceeding to ((the department)) a referee appointed by the court to take testimony ((by its duly authorized designee, as referee,)) and the ((designee)) referee shall report to and file with the superior court of the county in which such cause is pending a transcript of such testimony for adjudication thereon by such court.  The superior court may, in any complex case with more than one thousand named defendants, including the United States, retain for hearing and further processing such portions of the proceeding as pertain to a discrete class or classes of defendants or claims of water rights if the court determines that:  (((1))) (a) Resolution of claims of such classes appear to involve significant issues of law, either procedural or substantive; and (((2))) (b) such a retention will both expedite the conclusion of the case and reduce the overall expenditures of the plaintiff, defendants, and the court.

    (2) Except as provided in subsection (3) of this section, no person appointed as a referee under this section may be an employee of the department of ecology or an employee of any other party to the proceeding and such a person may not have been such an employee within three years prior to the commencement of the proceeding.

    (3) The provisions of subsection (2) of this section do not apply to an employee or former employee of the department of ecology who is acting, on the effective date of this subsection, as a referee in a general adjudication proceeding for water rights pending in the superior court.  This subsection applies only to the proceeding that is pending in superior court on the effective date of this subsection.


    Sec. 2.  RCW 90.03.170 and 1987 c 109 s 77 are each amended to read as follows:

    Thereupon the ((department)) referee shall fix a time and place for such hearing and serve written notice thereof upon all persons who have appeared in said proceeding, their agents or attorneys.  Notice of such hearing shall be served at least ten days before the time fixed therefor.  Such hearings may be adjourned from time to time and place to place.  The duly authorized ((designee)) referee shall have authority to subpoena witnesses and administer oaths in the same manner and with the same powers as referees in civil actions.  The fees and mileage of witnesses shall be advanced by the party at whose instance they are called as in civil actions.  A final decree adjudicating rights or priorities, entered in any case decided prior to June 6, 1917, shall be conclusive among the parties thereto and the extent of use so determined shall be prima facie evidence of rights to the amount of water and priorities so fixed as against any person not a party to said decree.


    Sec. 3.  RCW 90.03.190 and 1987 c 109 s 78 are each amended to read as follows:

    Upon the completion of the taking of testimony it shall be the duty of the ((department's designee)) referee to prepare and file with the clerk of the superior court where such proceeding is pending, a transcript of the testimony taken at such hearing, in triplicate, together with all papers and exhibits offered and received in evidence and not already a part of the record.  ((He)) The referee shall also make and file in said court a full and complete report as in other cases of reference in the superior court.  Two of said transcripts shall be for the use of the parties as the court may direct.  The court shall set a time for the hearing and the ((designee)) referee shall thereupon prepare a notice designating a time for the hearing of said report and serve a copy thereof, together with a copy of ((his)) the referee's report, on all persons, their agents or attorneys who have appeared in such proceeding.  Such service shall be made not less than twenty days before the time for said hearing, either personally or by registered mail, and an affidavit of such service filed with the clerk.


    Sec. 4.  RCW 90.03.200 and 1988 c 202 s 91 are each amended to read as follows:

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


    Sec. 5.  RCW 90.03.210 and 1988 c 202 s 92 are each amended to read as follows:

    During the pendency of such adjudication proceedings prior to judgment or upon review by an appellate court, the stream or other water involved shall be regulated or partially regulated according to the schedule of rights specified in the ((department's)) referee's report upon an order of the court authorizing such regulation:  PROVIDED, Any interested party may file a bond and obtain an order staying the regulation of said stream as to him or her, in which case the court shall make such order regarding the regulation of the stream or other water as ((he)) the court may deem just.  The bond shall be filed within five days following the service of notice of appeal in an amount to be fixed by the court and with sureties satisfactory to the court, conditioned to perform the judgment of the court.


    Sec. 6.  RCW 90.03.243 and 1982 c 15 s 1 are each amended to read as follows:

    The expenses incurred by the state in a proceeding to determine rights to water initiated under RCW 90.03.110 or 90.44.220 or upon appeal of such a determination shall be borne by the state.

    Expenses incurred by the court for the use of a referee appointed under RCW 90.03.160 may be paid from appropriations made expressly for this purpose to the office of the administrator for the courts, to the extent of such appropriations.


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