5028-S AMH AGNR H2679.1

SSB 5028 - H COMM AMD

By Committee on Agriculture & Natural Resources

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 90.48 RCW to read as follows:

In exercising authority according to this chapter, the department may only affect the beneficial use of a water right as provided in this section.

(1) Before applying authority according to this chapter to address a water quality problem caused by the unauthorized use of water, the department shall first establish that the use of water is not authorized according to chapter 90.03, 90.14, 90.40, or 90.44 RCW. The department shall establish that the use of water is unauthorized through the issuance of a formal action that is not appealed or is affirmed on appeal. When the use of water is established as unauthorized, the department may use authority under this chapter to address water quality problems resulting from the unauthorized water use.

(2) When issuing water quality certifications according to section 401 of the federal Clean Water Act (33 U.S.C. Sec. 1341), the department may condition federal hydropower licenses to ensure that the state's water quality standards are met and that adequate streamflows are maintained.

Sec. 2. RCW 90.03.600 and 1995 c 403 s 635 are each amended to read as follows:

The department must follow the sequence of enforcement actions, including levying a civil penalty, as provided in RCW 90.03.605. In determining the amount of penalty to be levied, the department shall consider the seriousness of the violation, whether the violation is repeated or continuous after notice is given of the violation, and whether any damage has occurred to the health or property of other persons. Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, ((the power is granted to)) the department of ecology ((to)) may levy civil penalties ((of up to)) ranging from one hundred dollars to ten thousand dollars per day for violation of any of the provisions of this chapter and chapters 43.83B, 90.22, and 90.44 RCW, and rules, permits, and similar documents and regulatory orders of the department of ecology adopted or issued pursuant to such chapters. The procedures of RCW 90.48.144 shall be applicable to all phases of the levying of a penalty as well as review and appeal of the same."

Correct the title.

EFFECT: Replaces water pollution definition and enforcement provisions with provisions: (1) Requiring the Department of Ecology (DOE), when addressing water quality problems from unauthorized water use, to establish the water use is unauthorized under the water resources statutes before exercising authority under the water pollution control statutes; and (2) specifying that DOE may, when issuing water quality certifications, condition federal hydropower licenses to ensure water quality standards are met and adequate streamflows are maintained. Adds provisions authorizing the DOE to levy penalties under the water code ranging from $100 to $10,000 per day (rather than $100) based on a consideration of factors (e.g., severity of the violation, repeated/continuous nature of violation, and damage) and the sequence of enforcement actions specified in the water code.

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