BP BHEAD INT S [atlas:bill]

AN ACT Relating to water resources; amending RCW 90.03.290, 43.27A.190, 43.21A.064, and 90.14.130; and adding a new section to chapter 90.03 RCW.

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

Sec. 1. RCW 90.03.290 and 1994 c 264 s 84 are each amended to read as follows:

(1) When an application complying with the provisions of this chapter and with the rules and regulations of the department has been filed, the same shall be placed on record with the department, and it shall be its duty to investigate the application, and determine what water, if any, is available for appropriation, and find and determine to what beneficial use or uses it can be applied. If it is proposed to appropriate water for irrigation purposes, the department shall investigate, determine and find what lands are capable of irrigation by means of water found available for appropriation. If it is proposed to appropriate water for the purpose of power development, the department shall investigate, determine and find whether the proposed development is likely to prove detrimental to the public interest, having in mind the highest feasible use of the waters belonging to the public.

(2) If the application does not contain, and the applicant does not promptly furnish sufficient information on which to base such findings, the department may issue a preliminary permit, for a period of not to exceed three years, requiring the applicant to make such surveys, investigations, studies, and progress reports, as in the opinion of the department may be necessary. If the applicant fails to comply with the conditions of the preliminary permit, it and the application or applications on which it is based shall be automatically canceled and the applicant so notified. If the holder of a preliminary permit shall, before its expiration, file with the department a verified report of expenditures made and work done under the preliminary permit, which, in the opinion of the department, establishes the good faith, intent and ability of the applicant to carry on the proposed development, the preliminary permit may, with the approval of the governor, be extended, but not to exceed a maximum period of five years from the date of the issuance of the preliminary permit.

(3) The department shall make and file as part of the record in the matter, written findings of fact concerning all things investigated, and if it shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare, it shall issue a permit stating the amount of water to which the applicant shall be entitled and the beneficial use or uses to which it may be applied: PROVIDED, That where the water applied for is to be used for irrigation purposes, it shall become appurtenant only to such land as may be reclaimed thereby to the full extent of the soil for agricultural purposes. But where there is no unappropriated water in the proposed source of supply, or where the proposed use conflicts with existing rights, or threatens to prove detrimental to the public interest, having due regard to the highest feasible development of the use of the waters belonging to the public, it shall be duty of the department to reject such application and to refuse to issue the permit asked for. If the permit is refused because of conflict with existing rights and such applicant shall acquire same by purchase or condemnation under RCW 90.03.040, the department may thereupon grant such permit.

(4) Any application may be approved for a less amount of water than that applied for, if there exists substantial reason therefor, and in any event shall not be approved for more water than can be applied to beneficial use for the purposes named in the application.

(5) In determining whether or not a permit shall issue upon any application, it shall be the duty of the department to investigate all facts relevant and material to the application. The department shall make a summary of the record of investigation and the proposed permit, if the department proposes to issue the permit, available to the public and provide a period of at least sixty days for the public to submit comments on it. The department shall consider the comments received and the entire record.

(6) After the department approves said application in whole or in part and before any permit shall be issued thereon to the applicant, such applicant shall pay the fee provided in RCW 90.03.470: PROVIDED FURTHER, That in the event a permit is issued by the department upon any application, it shall be its duty to notify the director of fish and wildlife of such issuance.

NEW SECTION. Sec. 2. A new section is added to chapter 90.03 RCW to read as follows:

The department may establish and maintain a stream keeper volunteer program. Stream keeper volunteers shall be appointed by the director to assist with administration and enforcement of the water code and be assigned to any water resource in the state, including but not limited to designated water master districts. The duties of stream keeper volunteers shall be limited to providing information and assistance regarding water use, facilitating cooperative arrangements among water right holders during periods of shortage, making visual inspections and documenting and reporting perceived potential violations of the water code, collecting and reporting data from metering and measuring devices, and other duties as determined by the department. The department may consult with the Washington State University cooperative extension service regarding recruitment of stream keeper volunteers, as well as enter into agreements for education and training of volunteers.

Sec. 3. RCW 43.27A.190 and 1987 c 109 s 11 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, notwithstanding and in addition to any other powers granted to the department of ecology, whenever it appears to the department that a person is violating or is about to violate any of the provisions of the following:

((~~(1)~~)) (a) Chapter 90.03 RCW; or

((~~(2)~~)) (b) Chapter 90.44 RCW; or

((~~(3)~~)) (c) Chapter 86.16 RCW; or

((~~(4)~~)) (d) Chapter 43.37 RCW; or

((~~(5)~~)) (e) Chapter 43.27A RCW; or

((~~(6)~~)) (f) Any other law relating to water resources administered by the department; or

((~~(7)~~)) (g) A rule or regulation adopted, or a directive or order issued by the department relating to ((~~subsections (1)~~)) (a) through ((~~(6)~~)) (f) of this ((~~section~~)) subsection; the department may cause a written regulatory order to be served upon said person either personally, or by registered or certified mail delivered to addressee only with return receipt requested and acknowledged by him. The order shall specify the provision of the statute, rule, regulation, directive or order alleged to be or about to be violated, and the facts upon which the conclusion of violating or potential violation is based, and shall order the act constituting the violation or the potential violation to cease and desist or, in appropriate cases, shall order necessary corrective action to be taken with regard to such acts within a specific and reasonable time. The regulation of a headgate or controlling works as provided in RCW 90.03.070, by a watermaster, stream patrolman, or other person so authorized by the department shall constitute a regulatory order within the meaning of this section. A regulatory order issued hereunder shall become effective immediately upon receipt by the person to whom the order is directed, except for regulations under RCW 90.03.070 which shall become effective when a written notice is attached as provided therein.

(2) If the department finds that a person is adversely affecting rights senior to that person, the department shall issue a regulatory order according to this subsection.

(a) If there is no existing water rights determination decree, the department shall find seniority based on the relevant facts and records.

(b) Before issuing a regulatory order the department shall notify the person alleged to be in violation. The notice shall specify the provision of the law alleged to be or about to be violated, the facts upon which the conclusion of a violation or potential violation is based, and any necessary corrective action to be taken to avoid the entry of a regulatory order. The notice shall state that the order shall be issued no sooner than five days after receipt of the notice, unless the recipient notifies the department that it intends to contest the order and requests a hearing before the department before its issuance.

(3) Any person aggrieved by such order may appeal the order pursuant to RCW 43.21B.310.

Sec. 4. RCW 43.21A.064 and 1997 c 443 s 2 are each amended to read as follows:

Subject to RCW 43.21A.068, the director of the department of ecology shall have the following powers and duties:

(1) The supervision of public waters within the state and their appropriation, diversion, and use, and of the various officers connected therewith;

(2) Insofar as may be necessary to assure safety to life or property, the director shall inspect the construction of all dams, canals, ditches, irrigation systems, hydraulic power plants, and all other works, systems, and plants pertaining to the use of water, and may require such necessary changes in the construction or maintenance of said works, to be made from time to time, as will reasonably secure safety to life and property;

(3) The director shall regulate and control the diversion of water in accordance with the rights thereto and in accordance with RCW 43.27A.190;

(4) The director shall determine the discharge of streams and springs and other sources of water supply, and the capacities of lakes and of reservoirs whose waters are being or may be utilized for beneficial purposes;

(5) The director shall, if requested, provide assistance to an applicant for a water right in obtaining or developing an adequate and appropriate supply of water consistent with the land use permitted for the area in which the water is to be used and the population forecast for the area under RCW 43.62.035. If the applicant is a public water supply system, the supply being sought must be used in a manner consistent with applicable land use, watershed and water system plans, and the population forecast for that area provided under RCW 43.62.035;

(6) The director shall keep such records as may be necessary for the recording of the financial transactions and statistical data thereof, and shall procure all necessary documents, forms, and blanks. The director shall keep a seal of the office, and all certificates covering any of the director's acts or the acts of the director's office, or the records and files of that office, under such seal, shall be taken as evidence thereof in all courts;

(7) The director shall render when required by the governor, a full written report of the office's work with such recommendations for legislation as the director deems advisable for the better control and development of the water resources of the state;

(8) The director and duly authorized deputies may administer oaths;

(9) The director shall establish and promulgate rules governing the administration of chapter 90.03 RCW;

(10) The director shall perform such other duties as may be prescribed by law.

Sec. 5. RCW 90.14.130 and 1987 c 109 s 13 are each amended to read as follows:

When it appears to the department of ecology that a person entitled to the use of water has ((~~not~~)) failed to beneficially ((~~used his~~)) use the water right or some portion thereof((,)) through nonuse or waste and it appears that said right has or may have reverted to the state because of such ((~~nonuse~~)) failure, as provided by RCW 90.14.160, 90.14.170, or 90.14.180, the department of ecology shall notify such person by order: PROVIDED, That where a company, association, district, or the United States has filed a blanket claim under the provisions of RCW 90.14.060 for the total benefits of those served by it, the notice shall be served on such company, association, district or the United States and not upon any of its individual water users who may not have used the water or some portion thereof which they were entitled to use. The order shall contain: (1) A description of the water right, including the approximate location of the point of diversion, the general description of the lands or places where such waters were used, the water source, the amount involved, the purpose of use, and the apparent authority upon which the right is based; (2) a statement that unless sufficient cause be shown on appeal the water right will be declared relinquished; and (3) a statement that such order may be appealed to the pollution control hearings board. Any person aggrieved by such an order may appeal it to the pollution control hearings board pursuant to RCW 43.21B.310. The order shall be served by registered or certified mail to the last known address of the person and be posted at the point of division or withdrawal. The order by itself shall not alter the recipient's right to use water, if any.