BILL REQ. #:  S-0526.1 

Read first time 01/21/2003.   Referred to Committee on Natural Resources, Energy & Water.

     AN ACT Relating to water resources management; amending RCW 90.03.600 and 43.21B.300; adding new sections to chapter 90.03 RCW; adding a new section to chapter 43.27A RCW; adding a new section to chapter 90.42 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 90.03 RCW to read as follows:
     (1) The department shall, through a network of water masters appointed under this chapter, stream patrollers appointed under chapter 90.08 RCW, and other assigned compliance staff, achieve compliance with the water laws and rules of the state of Washington in the following sequence:
     (a) The department shall prepare and distribute technical and educational information to assist water users in complying with the requirements of their water rights and applicable water laws;
     (b) When the department determines that a violation has occurred or is about to occur, it shall first attempt to achieve voluntary compliance by informing and educating the responsible person or persons regarding the law, the reason that the action or incipient action is not allowed under the law, and the potential penalties and sanctions that may be brought if compliance is not achieved. As part of this first response, the department shall offer technical information and assistance to the person in identifying alternative means to accomplish the person's purposes within the framework of the law; and
     (c) If education and technical assistance do not achieve compliance, the department shall issue a notice of violation, a formal administrative order under RCW 43.27A.190, or assess penalties under RCW 90.03.600, unless the noncompliance is corrected expeditiously or the department determines no impairment or harm.
     (2) This section is not intended to prevent the department from taking immediate action to cause a violation to be ceased immediately if in the opinion of the department the nature of the violation is causing or is likely to cause immediate harm to other water rights or to public resources.
     (3) The department shall to the extent practicable station its compliance personnel within the watershed communities they serve.

NEW SECTION.  Sec. 2   A new section is added to chapter 43.27A RCW to read as follows:
     (1) 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.
     (2) 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 pursuant to RCW 90.03.290 or 90.44.060; or (b) where a flow or level has been established by rule pursuant to chapter 90.22 or 90.54 RCW; or (c) where a provisional flow or level has been adopted pursuant to RCW 43.21B.300; or (d) 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 (3) of this section.
     (3) 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 (2) of this section, the department, as its sole and exclusive power to regulate, may 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 shall 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.
     (4) This section does not authorize the department 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.
     (5) This section does not amend, revise, or repeal RCW 90.14.130 or 90.14.200.
     (6) This section does not in any way modify regulatory powers previously placed with the department except as provided in subsections (2) and (3) of this section.

Sec. 3   RCW 90.03.600 and 1995 c 403 s 635 are each amended to read as follows:
     (1) 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 levy civil penalties ((of up to)) from one hundred to one thousand dollars per day for violation of any of the provisions of this chapter and chapters 43.83B, 90.22, ((and)) 90.44, 90.54, and 90.66 RCW, and rules, permits, ((and similar documents)) certificates, and regulatory orders of the department ((of ecology)) adopted or issued pursuant to such chapters. Each and every violation is a separate and distinct offense. Every act of commission or omission that results in, aids, or abets in the violation is considered a violation under this section and subject to the penalty as provided for in this section.
     (2) A minor violation is a violation that does not seriously threaten public health, safety, or the environment and is subject to a penalty of no more than one hundred dollars. Minor violations include paperwork violations such as failure to provide metering records or other required water use records upon request.
     (3) 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.

Sec. 4   RCW 43.21B.300 and 2001 c 36 s 2 are each amended to read as follows:
     (1) Any civil penalty provided in 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 shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the department or the local air authority, describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the department or the authority for the remission or mitigation of the penalty. Upon receipt of the application, the department or authority may remit or mitigate the penalty upon whatever terms the department or the authority in its discretion deems proper. The department or the authority may ascertain the facts regarding all such applications in such reasonable manner and under such rules as it may deem proper and shall remit or mitigate the penalty only upon a demonstration of extraordinary circumstances such as the presence of information or factors not considered in setting the original penalty.
     (2) Any penalty imposed under this section may be appealed to the pollution control hearings board in accordance with this chapter if the appeal is filed with the hearings board and served on the department or authority thirty days after receipt by the person penalized of the notice imposing the penalty or thirty days after receipt of the notice of disposition of the application for relief from penalty.
     (3) A penalty shall become due and payable on the later of:
     (a) Thirty days after receipt of the notice imposing the penalty;
     (b) Thirty days after receipt of the notice of disposition on application for relief from penalty, if such an application is made; or
     (c) Thirty days after receipt of the notice of decision of the hearings board if the penalty is appealed.
     (4) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county, or of any county in which the violator does business, to recover the penalty. If the amount of the penalty is not paid to the authority within thirty days after it becomes due and payable, the authority may bring an action to recover the penalty in the superior court of the county of the authority's main office or of any county in which the violator does business. In these actions, the procedures and rules of evidence shall be the same as in an ordinary civil action.
     (5) All penalties recovered shall be paid into the state treasury and credited to the general fund except those penalties imposed pursuant to RCW 18.104.155, which shall be credited to the reclamation account as provided in RCW 18.104.155(7), RCW 70.94.431, the disposition of which shall be governed by that provision, RCW 70.105.080, which shall be credited to the hazardous waste control and elimination account, created by RCW 70.105.180, ((and)) RCW 90.56.330, which shall be credited to the coastal protection fund created by RCW 90.48.390, and RCW 90.03.600, which shall be credited to the stream flow restoration account created by section 5 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 90.42 RCW to read as follows:
     The stream flow restoration account is created in the state treasury. All receipts from penalties under RCW 43.21B.300 and 90.03.600 must be deposited into the account. Expenditures from the account may be used only for the department to purchase or lease water rights for placement in the trust water rights program created in this chapter and chapter 90.38 RCW. Moneys in the stream flow restoration account may be spent only after appropriation.

NEW SECTION.  Sec. 6   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 of the water code and be assigned to any water resource in the state, including but not limited to designated water master districts. Where watershed management plans are being developed or implemented under chapter 90.82 RCW, the director shall consult with the planning unit or plan implementing entity before making an appointment of a stream keeper volunteer for the geographic area to be covered by the watershed management plan. The duties of stream keeper volunteers are limited to providing information and assistance regarding water use, facilitating cooperative arrangements among water right holders during periods of shortage, and other nonregulatory duties as determined by the department. The department may consult with the Washington State University cooperative extension service and other suitable entities regarding recruitment of stream keeper volunteers, as well as enter into agreements for education and training of volunteers.