Brief Description: Clarifying the state's authority to regulate water pollution.

Sponsors: Senate Committee on Natural Resources, Energy & Water (originally sponsored by Senators Morton and Hale).

Brief Summary of Substitute Bill

(As Amended by House Committee)

• Requires the Department of Ecology (DOE) to establish that water use is unauthorized under the water resources statutes before exercising authority under the water pollution control statutes.

• Specifies that the DOE may condition water quality certifications for federal hydropower licenses to ensure water quality standards are met and adequate stream flows are maintained.

• Replaces $100 per day penalty under the water code with authority to impose penalties of $100 to $10,000 per day subject to specified factors and the water code's sequence of enforcement actions.

Majority Report: Do pass as amended. Signed by 8 members: Representatives Linville, Chair; Rockefeller, Vice Chair; Schoesler, Ranking Minority Member; Kristiansen, Assistant Ranking Minority Member; Eickmeyer, Grant, Quall and Sump.

Minority Report: Do not pass. Signed by 5 members: Representatives Holmquist, Assistant Ranking Minority Member; Chandler, Hunt, McDermott and Orcutt.

The federal Clean Water Act (CWA) sets a national goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters. The CWA defines "pollutant" to include a variety of materials that may be discharged into water through human activities, construction or industrial processes, or other methods. The CWA also requires states to adopt water quality standards, which specify the desired water quality to be achieved or maintained and require existing water quality to be protected from degradation.

The CWA also requires applicants for a federal license or permit to provide the federal licensing or permitting agency a certification that any discharge to navigable waters associated with the licensed or permitted activity will comply with federal CWA requirements. The state Department of Ecology (DOE) issues these water quality certifications for projects in Washington.

Washington's pollution control law defines "pollution" as contamination or alteration of the physical, chemical, or biological properties of any state waters. The definition includes changes in temperature, taste, color, turbidity, or odor of water or any discharge of liquid, gas, solid, radioactive, or other substances into water likely to create a nuisance or cause waters to jeopardize public health, safety, or welfare or injure beneficial uses or livestock, animals, birds, fish or other aquatic life.

The DOE may bring a legal action, including an action for injunctive relief, to enforce or implement water pollution control.

The water code specifies a sequence of enforcement measures the DOE must follow to achieve compliance with the state's water laws and rules. The DOE must first prepare and distribute technical and educational information to the general public to assist the public to comply with water rights and water law requirements. When it determines a violation has occurred or is about to occur, the DOE must first attempt to achieve voluntary compliance. If this is not successful, the DOE issues a notice of violation or a formal administrative order or assesses penalties unless noncompliance is corrected expeditiously or the DOE determines not impairment or harm. The DOE may take immediate action if in its opinion the nature of the violation is causing harm to other water rights or public resources.

The DOE is authorized by the surface water code to levy civil penalties of up to $100 per day for violation of the surface and ground water, minimum water flows and levels, and water supply facilities statutes.

In 1994 the United States Supreme Court determined that the DOE may condition a water quality certification for a hydroelectric power plant on any limitations necessary to ensure compliance with state water quality standards. PUD No. 1 of Jefferson County v. Department of Ecology, 511 U.S. 700 (1994). The court in that case concluded that a minimum stream flow condition was an appropriate requirement of state law on which to condition the water quality certification.

In another case involving a hydroelectric facility, the Washington Supreme Court concluded that the DOE may impose instream flow conditions in a water quality certification without regard to whether the applicant for a federal license has existing water rights. PUD No. 1 of Pend Oreille County v. Department of Ecology, 146 Wn.2d 778 (2002).

When addressing water quality problems from unauthorized water use, the Department of Ecology (DOE) must first establish that the water use is unauthorized under the water resources statutes before exercising authority under the water pollution control statutes.

When issuing water quality certifications, the DOE may condition federal hydropower licenses to ensure that state water quality standards are met and adequate stream flows are maintained.

Before levying penalties under the water code, the DOE must follow the sequence of enforcement actions established in the water code. The DOE may levy penalties under the water code ranging from $100 to $10,000 per day. In determining the amount of the penalty, the DOE must 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.

The amendment replaces all provisions with: (1) a requirement for the Department of Ecology (DOE) to establish water use is unauthorized under the water resources statutes before exercising authority under the water pollution control statutes; (2) authority for the DOE to condition water quality certifications for federal hydropower licenses to ensure water quality standards are met and adequate stream flows are maintained; and (3) amendment of the penalty provisions in the surface water code to authorize penalties ranging from $100 to $10,000 per day based on a consideration of factors and the sequence of enforcement actions in the water code.

Effective Date of Amended Bill: The bill takes effect 90 days after adjournment of session in which bill is passed.

Testimony For: The situation with Methow Valley Irrigation District could happen to anyone. Water rights are existing property rights and should not be taken away on the basis of water quality. This bill clarifies the legislative intent regarding the water pollution control statutes. This bill does not try to reverse the Elkhorn decision; rather, it alleviates the enormous burden of litigating unlawful claims by the Department of Ecology. Failure to pass this bill could be very damaging to agricultural communities.

The bill could be amended to clarify that these provisions do not affect water quality certification authority. In addition, increased penalties for waste of water could be added to the bill.

Testified: Senator Morton, prime sponsor; Senator Honeyford; Mike Poulson, Washington Farm Bureau; Vaughn Jolley, Methow Valley Irrigation Association; Jim Miller, City of Everett; and Bill Hahn, PUD Association Water Committee and Kitsap PUD.