BILL REQ. #:  H-3885.1 

Read first time 01/13/2004.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to watershed health; amending RCW 77.85.040, 43.06.220, 43.21B.110, and 90.82.080; adding a new section to chapter 43.27A RCW; adding new chapters to Title 90 RCW; and providing an effective date.

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

NEW SECTION.  Sec. 1   The legislature finds that the waters of the state are among the most valuable and fragile of the public's natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation. In addition it finds that ever increasing pressures of additional consumptive uses are being placed on the rivers, streams, and ground waters, necessitating increased coordination in the management of the waters of the state. The legislature declares that the common interest of all of the people, as the owners of the waters of the state, shall be paramount in the management of water; and that the department's role as steward of the state's water resources require it to have the ability to exercise sound planning and oversight powers that will enable it to protect the interests of today's and tomorrow's citizens. In the implementation of this policy the public's opportunity to enjoy the physical and aesthetic qualities of the waters of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. To this end, uses shall be preferred that are consistent with water resource sustainability, control of pollution, and prevention of damage to the natural environment.

Sec. 2   RCW 77.85.040 and 2000 c 107 s 94 are each amended to read as follows:
     (1) The governor shall request the national academy of sciences, the American fisheries society, or a comparable institution to screen candidates to serve as members on the independent science panel. The institution that conducts the screening of the candidates shall submit a list of the nine most qualified candidates to the governor, the speaker of the house of representatives, and the majority leader of the senate. The candidates shall reflect expertise in habitat requirements of salmon, protection and restoration of salmon populations, artificial propagation of salmon, hydrology, or geomorphology.
     (2) The speaker of the house of representatives and the majority leader in the senate may each remove one name from the nomination list. The governor shall consult with tribal representatives and the governor shall appoint five scientists from the remaining names on the nomination list.
     (3) The members of the independent science panel shall serve four-year terms. Vacant positions on the panel shall be filled in the same manner as the original appointments. Members shall serve no more than two full terms. The independent science panel members shall elect the chair of the panel among themselves every two years. Based upon available funding, the governor's salmon recovery office may contract for services with members of the independent science panel for compensation under chapter 39.29 RCW.
     (4) The independent science panel shall be governed by generally accepted guidelines and practices governing the activities of independent science boards such as the national academy of sciences. The purpose of the independent science panel is to help ensure that sound science is used in salmon recovery efforts. The governor's salmon recovery office shall request review of salmon recovery plans by the science review panel. The science panel does not have the authority to review individual projects or habitat project lists developed under RCW 77.85.050, 77.85.060, and 75.46.080 or to make policy decisions. The panel shall periodically submit its findings and recommendations under this subsection to the legislature and the governor.
     (5) The independent science panel, in conjunction with the technical review team, shall recommend standardized monitoring indicators and data quality guidelines for use by entities involved in habitat projects and salmon recovery activities across the state.
     (6) The independent science panel, in conjunction with the technical review team, shall also recommend criteria for the systematic and periodic evaluation of monitoring data in order for the state to be able to answer critical questions about the effectiveness of the state's salmon recovery efforts.
     (7) The recommendations on monitoring as required in this section shall be provided in a report to the governor and to the legislature by the independent science panel, in conjunction with the salmon recovery office, no later than December 31, 2000. The report shall also include recommendations on the level of effort needed to sustain monitoring of salmon projects and other recovery efforts, and any other recommendations on monitoring deemed important by the independent science panel and the technical review team. The report may be included in the biennial state of the salmon report required under RCW 77.85.020.
     (8) An instream flow committee must be established consisting of five individuals with the expertise to provide scientific and technical review of the state's instream flow program. Candidates must possess expertise in hydrology, fluvial geomorphology, fisheries biology, aquatic ecology, or a similar scientific discipline that confers expertise on instream flow. The instream flow committee must include members who have expertise in instream flow assessment methodologies. The purpose of the instream flow committee is to assess and provide recommendations on the state's program to establish and achieve instream flows. The instream flow committee will provide recommendations to ensure the state's instream flow program relies on generally accepted, peer-reviewed methods, and that appropriate applications are identified, and that policies are scientifically defensible and credible. The instream flow committee will review instream flow rules submitted before the enactment of an instream flow guidance rule adopted by the department. The instream flow committee also will review those instream flow rules and streamflow implementation performance programs that are appealed and are part of the formal record of a program or rule.

NEW SECTION.  Sec. 3   By December 2007, the department must adopt by rule instream flow standards that must be used in developing or modifying instream flows established by the department by rule. In developing the standards, the department must consult with the department of fish and wildlife. Instream flow rules must establish flow requirements for normal, low, and high water years that achieve hydrologic integrity, considering both the biology and hydrology of the watershed. Once guidance has been provided by the instream flow committee under RCW 77.85.040(8), the standards must be consistent with that guidance and subsequently must be updated to be consistent with any further guidance provided by the committee.
     Until such time as the standards required by this section are adopted, the department must use the policies provided in the guidance document the department published in response to the requirements of RCW 90.82.085 in establishing instream flows by rule or amending the rules.

NEW SECTION.  Sec. 4   (1) Once standards have been adopted under section 3 of this act, the department must review all minimum water flows or base flows established by rule prior to the effective date of this section under chapter 90.22 or 90.54 RCW to determine whether they are consistent with the standards. By 2009, the department must modify any such flow requirements that are inconsistent with the standards so that they are consistent with the standards.
     (2) By the end of 2010, the department must establish by rule instream flows that are consistent with the standards adopted under section 3 of this act for all mainstems and key tributaries of the streams in the state. The order of priority for doing so is the schedule for setting instream flows contained in the December 12, 2002, document prepared by the department entitled "Work Plan for Instream Flow Setting Through 2010" for the streams scheduled in the work plan. For any mainstem stream or key tributary for which flows are not scheduled to be developed in the work plan or under RCW 90.82.080, the department must establish the order of priority for establishing such flows.
     The key tributaries to streams must be identified by the department of fish and wildlife, in consultation with tribes, and must include streams important to the protection of fish and other environmental values.
     (3) Once instream flows have been established or amended by rule under this section or existing flows have been found to be consistent with the standards adopted under section 3 of this act, the terms "minimum water flows" as used in chapter 90.22 RCW, "base flows" as used in RCW 90.54.020, "minimum instream flows" as used in chapter 90.82 RCW, and "instream flows" as used in this chapter are to be considered to be synonymous with regard to the flows necessary for fish.
     (4) After 2011, the instream flows established by rule shall be reviewed at least every seven years and updated as necessary to be consistent with any further guidance provided by the instream flow committee under RCW 77.85.040.

NEW SECTION.  Sec. 5   (1) A streamflow implementation performance program must be developed for each watershed in the state. The program may be developed by a planning unit conducting planning under chapter 90.82 RCW, a locally based entity requested by the department to advise it under RCW 90.54.040(1), or by the department. Each plan must satisfy the requirements of the rules adopted under section 6(1) of this act by providing implementation, maintenance, and assurance measures to achieve the instream flows established or amended for streams in the watershed under section 3 of this act or flows reviewed and found to satisfy state standards under section 3 of this act.
     (2)(a) Except as provided in section 8(1) of this act and (b) of this subsection, such a plan must be developed for each watershed within one year of adoption of a new or amended instream flow rule. Each program must be consistent with the rules adopted by the department under subsection (1) of this section.
     (b) If neither a planning unit created under chapter 90.82 RCW nor a locally based entity providing advice to the department under RCW 90.54.040(1) is developing a streamflow implementation performance program for a stream's watershed, the department must develop such a program within one year of the date an instream flow for a stream is established, amended, or reviewed and found to be consistent with state standards under section 3 of this act.

NEW SECTION.  Sec. 6   (1) The department, in consultation with the board, and the departments of fish and wildlife, health, and community, trade, and economic development, must adopt rules to ensure streamflow implementation performance programs are consistent with the requirements of this section and will be adequate to achieve designated instream flows according to the schedule set forth in this chapter. The instream flow committee of the independent science panel established in RCW 77.85.040(8) must evaluate the draft rule to ensure that it is technically sound, and relies on accepted, proven, and effective practices. The department and department of fish and wildlife must formally respond to the findings and recommendations of the committee in their written determination accepting or rejecting a proposed rule. The rules must be adopted by December 2007. As a minimum, each streamflow implementation performance program must contain the following elements:
     (a) Actions to be taken to achieve instream flows, and the schedule for those actions;
     (b) The estimated quantity of streamflows to result from each action;
     (c) Actions that will improve instream flows upon approval of the streamflow implementation performance program;
     (d) The roles and responsibilities for each action, and the funding amount and source;
     (e) Performance benchmarks to be achieved over time, the monitoring of performance, and periodic reporting;
     (f) Provisions for streamflow implementation performance program review and change;
     (g) Provisions for the collection and reporting of information on streamflow and water use measurement, including a description of how the information will be made accessible to the public;
     (h) A summary of current information and an analysis of the effect of land use on streamflows, an identification of gaps in information, and an assessment program to fill those data gaps. The analysis shall focus on whether and to what extent urbanization and development in urban and urbanizing counties and forest practices, development, and agricultural practices in rural counties affect streamflows;
     (i) A summary of existing and planned water use conservation and efficiency programs and projects, and an assessment program for determining the conservation potential within the watershed;
     (j) Supplemental actions that would be taken if planned actions do not meet the identified benchmarks; and
     (k) Water use compliance requirements consistent with statewide compliance programs in section 7 of this act.
     Streamflow implementation performance program actions that are consistent with natural hydrologic conditions and minimize disruption of those conditions shall be preferred over those that do not.
     (2) A streamflow implementation performance program may optionally contain elements for: Acquiring water rights, pro rata water use reduction agreements, and storage projects.
     (3) Streamflow implementation performance programs must describe the obligations and agreements necessary to achieve and protect instream flows. Streamflow implementation performance programs may include measures such as the following: Interlocal agreements, contracts, voluntary programs, local ordinances, and state rules. At a minimum, the streamflow implementation performance program must consist of a state rule detailing the state's responsibilities, authorities, and actions needed to achieve the instream flow.

NEW SECTION.  Sec. 7   (1) By 2006, the department, in consultation with the departments of fish and wildlife and health, must implement the following programs on a statewide basis to support the successful implementation of streamflow implementation performance programs:
     (a) Publicly accessible information including access to a web site providing data on streamflows and water use;
     (b) Water rights acquisition;
     (c) Water conservation funding;
     (d) Changes in water conveyance to benefit instream flows;
     (e) Drought response;
     (f) A water code compliance program that regulates illegal and wasteful water use. This program shall include consultation with the department of health with respect to the conservation requirements for municipal water providers; and
     (g) A mediation program and other means to facilitate voluntary shared use agreements and other cooperative mechanisms to achieve instream flows.
     (2) If streamflow implementation performance programs do not achieve instream flows established by rule or if, during the two or four-year reviews of the programs, the department finds that the timelines and benchmarks in a program are not met, the department and the department of fish and wildlife must take actions that will satisfy the timelines and benchmarks to achieve and protect such flows through the use of any and all tools available under law. These tools include, but are not limited to the following legal authorities:
     (a) Chapters 43.27A, 90.03, 90.14, 90.22, 90.44, and 90.54 RCW;
     (b) Chapter 90.48 RCW; and
     (c) Chapters 43.21C, 36.70A, and 90.58 RCW.
     (3) Any person may file an action in Thurston county superior court or the superior court for the county in which the affected watershed exists to compel any agency action required by this chapter.

NEW SECTION.  Sec. 8   (1) Each streamflow implementation performance program must be reviewed for approval by the department. The department with the concurrence of the department of fish and wildlife, and following consultation with the departments of health, and community, trade, and economic development, must approve, conditionally approve, or disapprove such a program based on its compliance with the department's rules adopted under section 6 of this act. Each approval, conditional approval, or disapproval is subject to appeal to the pollution control hearings board under chapter 43.21B RCW. Streamflow implementation performance programs that are appealed to the pollution control hearings board on technical merits or methods must be reviewed by the instream flow committee of the independent science panel created under RCW 77.85.040. The purpose of the instream flow committee review must be to determine if the proposed program is technically sound and whether the proposed actions are likely to achieve the instream flows set by rule. If the committee finds that the program will not likely achieve the instream flows, the committee must identify the deficiencies with the proposed program and recommend measures to remedy those deficiencies. The pollution control hearings board's review is de novo and the committee's findings and recommendations must be considered by the board during the appeal. The department and the department of fish and wildlife must formally respond in writing to the committee's findings and recommendations. If the performance program is not consistent with the rules adopted under section 6 of this act, the plan cannot be approved. If such a performance program is disapproved by the department or is disapproved or found upon appeal not to be in compliance with the rules adopted under section 6 of this act, the department must develop a streamflow implementation performance program for the watershed within one year of the date of the disapproval or finding. The processing of new water rights applications must be held in abeyance in a watershed until a streamflow implementation performance program has been approved by the state for the watershed.
     (2) The department, in consultation with the departments of fish and wildlife, health, and community, trade, and economic development, must review each approved or conditionally approved streamflow implementation performance program every two years to assess progress in complying with the requirements of the program and the timelines established in the program and must classify watersheds and their subbasins as making or failing to make reasonable progress in achieving the instream flows adopted for the streams in the watersheds or subbasins.
     (3) In watersheds currently meeting required instream flows, the streamflow implementation performance program must describe those actions that will be taken to ensure that the required instream flow will continue to be met. In watersheds not currently meeting required instream flows, streamflow implementation performance programs must achieve instream flows as soon as practicable, but no later than six years from state approval, unless this deadline is extended under subsection (4) of this section. Reasonable progress must be defined according to the following benchmarks:
     (a) At year two of implementation, scheduled actions have been taken, pending actions are on schedule for implementation, and initial improvement to instream flows has occurred;
     (b) At year four of implementation, significant progress in achieving and protecting instream flows has occurred, and it is determined that current and planned actions are likely to achieve the instream flows established by rule within the established timeline. If it is determined that current and planned actions are not likely to achieve the instream flows, supplemental actions must be identified to achieve the instream flows; and
     (c) At year six of the program, instream flows have been achieved.
     (4) Extensions to the six-year performance benchmark provided by subsection (3) of this section may be granted by the department, but are not favored and may be granted only under extraordinary circumstances. Extensions may not be granted where watershed or stream conditions are poor, which includes but is not limited to situations where water quality standards as established under chapter 90.48 RCW are not being met, aquatic species are listed under the federal endangered species act, or aquatic species are listed on the state salmon and stock inventory as critical or depressed. Further, it must be demonstrated at the time of initial approval by the state, and at the required two and four-year reviews, that there is a high likelihood that the proposed actions being relied on to achieve instream flows will be fully funded and effective.
     (5) Six years after the approval or conditional approval of a streamflow implementation performance program or on the extended date granted under subsection (4) of this section, the department, in consultation with the departments of fish and wildlife, health, and community, trade, and economic development, must declare whether the instream flows of the streams governed by the program satisfy the instream flow rules adopted for them. The department's declaration is subject to appeal to the pollution control hearings board under chapter 43.21B RCW.
     (6) Once streamflows are achieved, and by 2017, review and updates to streamflow implementation performance programs must occur in concert with land use plan updates.

NEW SECTION.  Sec. 9   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Department" means the department of ecology.
     (2) "Director" means the director of ecology.

NEW SECTION.  Sec. 10   Sections 1 and 3 through 9 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION.  Sec. 11   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Department" means the department of revenue.
     (2) "Water right holder" means a person or entity:
     (a) With a right to divert or withdraw water under: (i) A water right permit or certificate issued under chapter 90.03 or 90.44 RCW; (ii) the authority of a water right represented by a statement of claim filed in the water rights claims registry established under RCW 90.14.111; or (iii) the authority of a water right established after the effective date of this section that is exempted from permit requirements by RCW 90.44.050; or
     (b) Who receives water from a federal reclamation project for distribution to water users or consumers.
     (3) For the purposes of levying a fee under this chapter, a "water right holder" does not mean a person with a right to withdraw water from an exempt well established by the effective date of this section, that is, under a right that is exempt from permit requirements under RCW 90.44.050 and established by the effective date of this section.

NEW SECTION.  Sec. 12   (1) An annual fee is imposed on the diversion or withdrawal of water by a water right holder and on the receipt of water from a federal reclamation project for distribution to water users or consumers. The purpose of the fee is provide funding to the department of ecology to provide for the long-term health of watersheds through the administration and enforcement of the programs for establishing and achieving instream flows provided by sections 1 through 8 of this act.
     (2) For diversions or withdrawals by a water right holder, the fee is in the amount of . . . . . cents for each cubic foot of water diverted or withdrawn by the water right holder in a calendar year and is the financial responsibility of the water right holder; and for persons or entities receiving water from a federal reclamation project for distribution to water users or consumers, the fee is in the amount of . . . . . cents for each cubic foot of water received in a calendar year for such distribution from the project and is the financial responsibility of the person or entity receiving the water for distribution.
     (3) The department must collect the fees imposed by this section and deposit them in the streamflow implementation performance account, created in section 13 of this act, less the costs incurred by the department in collecting the fees. The provisions of chapter 82.32 RCW that are not inconsistent with this section apply to the fees imposed by this section in the same manner prescribed for taxes and the due dates, reporting periods, and return requirements of chapter 82.04 RCW apply except that the fee is to be collected annually.

NEW SECTION.  Sec. 13   The streamflow implementation performance account is created in the state treasury. All receipts from section 12 of this act must be deposited in the account. The account is subject to appropriation. Expenditures from the account may be used only to provide funding to the department of ecology for administering the instream flow and streamflow implementation performance programs provided by chapter 90.-- RCW (sections 1 and 3 through 9 of this act).

NEW SECTION.  Sec. 14   Sections 11 through 13 of this act constitute a new chapter in Title 90 RCW.

Sec. 15   RCW 43.06.220 and 2003 c 53 s 222 are each amended to read as follows:
     (1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting:
     (a) Any person being on the public streets, or in the public parks, or at any other public place during the hours declared by the governor to be a period of curfew;
     (b) Any number of persons, as designated by the governor, from assembling or gathering on the public streets, parks, or other open areas of this state, either public or private;
     (c) The manufacture, transfer, use, possession or transportation of a molotov cocktail or any other device, instrument or object designed to explode or produce uncontained combustion;
     (d) The transporting, possessing or using of gasoline, kerosene, or combustible, flammable, or explosive liquids or materials in a glass or uncapped container of any kind except in connection with the normal operation of motor vehicles, normal home use or legitimate commercial use;
     (e) The possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person's place of residence or business;
     (f) The sale, purchase or dispensing of alcoholic beverages;
     (g) The sale, purchase or dispensing of other commodities or goods, as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace;
     (h) The use of certain streets, highways or public ways by the public; and
     (i) Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.
     (2) If the state of emergency is proclaimed in response to an imminent danger to the public health or the environment caused by insufficient water supplies, the governor must order the director of ecology to issue orders regulating water users as is necessary to alleviate the danger.
     (3) In imposing the restrictions provided for by RCW 43.06.010, and 43.06.200 through 43.06.270, the governor may impose them for such times, upon such conditions, with such exceptions and in such areas of this state he or she from time to time deems necessary.
     (((3))) (4) Any person willfully violating any provision of an order issued by the governor under this section is guilty of a gross misdemeanor.

NEW SECTION.  Sec. 16   A new section is added to chapter 43.27A RCW to read as follows:
     The purpose of this section is to set forth the powers of the department to regulate the withdrawal or diversion of public waters and water or water rights related thereto, including regulation based on dates of priority or other pertinent factors. Regulatory actions taken under this section shall be based on examination and determination by the department or the court, as applicable, of the various water rights involved according to the department's records and other records and pertinent facts. The powers set forth in this section may be exercised whether or not a general adjudication relating to the water rights involved has been conducted.
     (1) In a regulatory situation: (a) Where a water right or all water rights proposed for regulation by the department, as well as any right or rights of a senior priority that the proposed regulation is designed to protect, is or are embodied in a certificate or certificates issued under RCW 90.03.240, 90.03.330, 90.38.040, 90.42.040, or 90.44.060 or a permit or permits issued under RCW 90.03.290 or 90.44.060; (b) where a flow or level has been established by rule under chapter 90.22, 90.54, or 90.-- RCW (sections 1 and 3 through 9 of this act); or (c) where it appears to the department that public waters are being withdrawn without any right or other appropriate authority whatsoever, the department in its discretion is authorized to regulate the right or rights under either RCW 43.27A.190 or subsection (2) of this section.
     (2) In a regulatory situation where one or more of the water rights proposed for regulation by the department, as well as any right or rights of a senior priority that the proposed regulation is designed to protect, is not or are not embodied in a permit or certificate as described in subsection (1) of this section, the department, in its sole and exclusive power to regulate, is authorized to bring an appropriate action at law or in equity, including seeking injunctive relief, as it may deem necessary. Where actions are brought in a state court, the actions must be initiated in the superior court of the county where the point or points of diversion of the water right or rights proposed for regulation are located. If the points of diversion are located in more than one county, the department may bring the action in a county where a point of diversion is located. Notwithstanding the general adjudication procedures in RCW 90.03.110 through 90.03.245 and 90.44.220, the superior court shall make findings and a determination of the validity and priority of the water rights held by the parties to resolve the regulatory situation. The superior court shall issue any necessary orders to implement its findings and determination, including injunctive relief, that it determines is necessary to regulate among the water rights.
     (3) Nothing in this section authorizes the department or the superior court to accomplish a general adjudication of water rights proceeding or the substantial equivalent of a general adjudication of water rights. The exclusive procedure for accomplishing a general adjudication of water rights is under RCW 90.03.110 through 90.03.245 or 90.44.220.
     (4) Nothing in this section amends, revises, or repeals RCW 90.14.130 or 90.14.200.
     (5) This section does not in any way modify regulatory powers previously placed with the department except as provided in subsections (1) and (2) of this section.

Sec. 17   RCW 43.21B.110 and 2003 c 393 s 19 are each amended to read as follows:
     (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:
     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.
     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, and 90.56.330.
     (c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.
     (d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.
     (e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.
     (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.
     (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
     (h) Decisions of the department of ecology to approve, conditionally approve, or disapprove a streamflow implementation performance program made under section 8(1) of this act and declarations of the department made under section 8(5) of this act.
     (i) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
     (2) The following hearings shall not be conducted by the hearings board:
     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
     (c) Proceedings conducted by the department, or the department's designee, under RCW 90.03.160 through 90.03.210 or 90.44.220.
     (d) Hearings conducted by the department to adopt, modify, or repeal rules.
     (e) Appeals of decisions by the department as provided in chapter 43.21L RCW.
     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

Sec. 18   RCW 90.82.080 and 2003 1st sp.s. c 4 s 4 are each amended to read as follows:
     (1)(a) If the initiating governments choose, by majority vote, to include an instream flow component, it shall be accomplished in the following manner:
     (i) If minimum instream flows have already been adopted by rule for a stream within the management area, unless the members of the local governments and tribes on the planning unit by a recorded unanimous vote request the department to modify those flows, the minimum instream flows shall not be modified under this chapter. If the members of local governments and tribes request the planning unit to modify instream flows and unanimous approval of the decision to modify such flow is not achieved, then the instream flows shall not be modified under this section;
     (ii) If minimum stream flows have not been adopted by rule for a stream within the management area, setting the minimum instream flows shall be a collaborative effort between the department and members of the planning unit. The department must attempt to achieve consensus and approval among the members of the planning unit regarding the minimum flows to be adopted by the department. Approval is achieved if all government members and tribes that have been invited and accepted on the planning unit present for a recorded vote unanimously vote to support the proposed minimum instream flows, and all nongovernmental members of the planning unit present for the recorded vote, by a majority, vote to support the proposed minimum instream flows.
     (b) The department shall undertake rule making to adopt flows under (a) of this subsection. The department may adopt the rules either by the regular rules adoption process provided in chapter 34.05 RCW, the expedited rules adoption process as set forth in RCW 34.05.353, or through a rules adoption process that uses public hearings and notice provided by the county legislative authority to the greatest extent possible. 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.
     (c) If approval is not achieved within four years of the date the planning unit first receives funds from the department for conducting watershed assessments under RCW 90.82.040, the department ((may)) must promptly initiate rule making under chapter 34.05 RCW to establish flows for those streams and shall have two additional years to establish the instream flows for those streams for which approval is not achieved.
     (2)(a) Notwithstanding RCW 90.03.345, minimum instream flows set under this section for rivers or streams that do not have existing minimum instream flow levels set by rule of the department shall have a priority date of two years after funding is first received from the department under RCW 90.82.040, unless determined otherwise by a unanimous vote of the members of the planning unit but in no instance may it be later than the effective date of the rule adopting such flow.
     (b) Any increase to an existing minimum instream flow set by rule of the department shall have a priority date of two years after funding is first received for planning in the WRIA or multi-WRIA area from the department under RCW 90.82.040 and the priority date of the portion of the minimum instream flow previously established by rule shall retain its priority date as established under RCW 90.03.345.
     (c) Any existing minimum instream flow set by rule of the department that is reduced shall retain its original date of priority as established by RCW 90.03.345 for the revised amount of the minimum instream flow level.
     (3) Before setting minimum instream flows under this section, the department shall engage in government-to-government consultation with affected tribes in the management area regarding the setting of such flows.
     (4) 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.
     (5) If the planning unit is unable to obtain unanimity under subsection (1) of this section, the department ((may)) must adopt rules setting such flows.
     (6) The department shall report annually to the appropriate legislative standing committees on the progress of instream flows being set under this chapter, as well as progress toward setting instream flows in those watersheds not being planned under this chapter. The report shall be made by December 1, 2003, and by December 1st of each subsequent year.

NEW SECTION.  Sec. 19   Section 15 of this act takes effect July 1, 2004.