AN ACT Relating to department of transportation participation in storm water management; amending RCW 35.67.025, 35.92.021, 36.89.085, 36.94.145, 56.08.012, 86.15.160, 86.15.176, and 90.03.500; and adding new sections to chapter 47.28 RCW.

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

NEW SECTION. Sec. 1. The definitions set forth in this section apply to sections 2 through 7 of this act.

(1) "Local governmental entity" means a city, town, county, sewer district, or flood control zone district.

(2) "State highway right of way" means the right of way for a state highway, title to which is in the state of Washington. As used in sections 2 through 7 of this act the phrase includes the right of way of a state limited-access highway inside or outside a city or town but does not include city or town streets forming a part of the route of a state highway that are not limited-access highways. The term does not include state property under the jurisdiction of the department of transportation that is outside the right of way lines of a state highway.

(3) "Storm water control facility" means any facility to control the runoff of surface waters or the flow of streams for flood control purposes including the improvement or modification of stream channels.

(4) "Storm water utility" means a storm water utility established by a city or town under chapter 35.67 or 35.92 RCW; a storm water utility or system established by a county under chapter 36.89 or 36.94 RCW; a storm water control system established by a sewer district under chapter 56.08 RCW; or a flood control system established by a flood control zone district under chapter 86.15 RCW.

NEW SECTION. Sec. 2. Whenever a city, town, county, sewer district, or flood control zone district establishes a storm water utility and proposes to charge the department for costs of construction or operation and maintenance of storm water control facilities, and the proposed charge is based in whole or in part upon the area of state highway right of way within the governmental entity's jurisdiction rather than special benefits, the governmental entity shall first provide written notice of the proposed charge to the secretary. Within sixty days of receipt of the notice, the secretary may elect to pay the storm water utility charge upon the same basis as a private property owner, or the secretary may elect to contribute to the cost of the construction and operation and maintenance of storm water control facilities under the alternative method provided in sections 3 through 7 of this act. The secretary shall make the election in writing and cause it to be served upon the governing body of the local governmental entity.

NEW SECTION. Sec. 3. If the secretary, on behalf of the department, has elected to contribute to the costs of construction and operation and maintenance of storm water control facilities by the alternative method, the department and the local governmental entity may enter into a cooperative agreement for the future planning, design, construction, and maintenance and operation of storm water control improvements within the local governmental entity's jurisdiction. The department may agree to pay a share of the costs based upon the factors set forth in section 4 of this act or any other factors that are mutually agreeable bearing upon the fair share of the costs to be contributed by the department. Pursuant to the agreement the department may perform work, furnish materials, and provide services including photogrammetric services, hydrologic analysis, and computer modeling for the planning of storm water improvements and for determining the department's fair share of costs. The department may also agree to contribute its share of costs by direct payment to the local governmental entity, but such payments shall be made only after the execution of a cooperative agreement authorizing the payments.

NEW SECTION. Sec. 4. Participation by the department in the cost of construction or the operation and maintenance of local governmental storm water control improvements authorized by chapters 35.67, 35.92, 36.89, 36.94, 56.08, and 86.15 RCW shall be limited as follows:

(1) The department shall have no responsibility for costs of any storm water drainage facilities constructed within a drainage basin in which no state highway right of way is located.

(2) The department's contribution to the cost of construction of a storm water control facility shall be based upon the estimated percentage of the total volume of water that the facility is designed to accommodate which will be contributed by runoff from state highway right of way located within the drainage basin in which the facility is to be constructed. The department's contribution may include services in kind.

(3) The department may not participate in the costs of construction or operation and maintenance of facilities for recreational purposes or the incremental cost of storm water control facilities that are attributable to recreational purposes.

(4) Nothing in sections 1 through 7 of this act creates any obligation for the department to contribute to the construction costs of storm water drainage improvements constructed before the effective date of this act.

(5) Except as otherwise provided in sections 1 through 7 of this act, every local governmental entity shall retain final control over the planning, design, construction, operation and maintenance, and method of financing storm water control improvements within its jurisdiction.

(6) The department shall not share in the costs of operation and maintenance of storm water control facilities operated by local governmental entities within drainage basins in which no state highway right of way is located. The department's share of operation and maintenance costs of any storm water control facility shall be based upon that estimated percentage of the total volume of water that the facility is designed to accommodate which will be contributed by the runoff from state highway right of way located within the drainage basin in which the facility is located. The department's contribution may include services in kind.

NEW SECTION. Sec. 5. If the department and a local governmental entity are unable to agree on the fair share the department should contribute to the cost of constructing and operating and maintaining storm water control improvements, the department shall proceed to determine which existing or proposed local governmental storm water control improvements are or will be located within a drainage basin in which state highway right of way is located. With respect to such storm water improvements, the department, with participation of the local governmental entity as may be agreed, may then undertake photogrammetric studies of each such drainage basin and may conduct a hydrologic analysis of each such basin to determine the department's responsibility for future construction costs and ongoing operation and maintenance costs of such facilities. The department may develop computer models for predicting floods within each such basin, the effects of future development within the basin, and the relative water runoff from state highway right of way in relation to runoff from other property within the basin.

NEW SECTION. Sec. 6. When the department has made a determination of its financial responsibility for the costs of (1) constructing proposed storm water control facilities and (2) operation and maintenance of existing and proposed storm water control facilities for the ensuing fiscal year of the local entity, it shall provide to the local governmental entity copies of all aerial photographs, hydrologic analysis, or other data upon which the determination is based. If the local governmental entity disagrees with the department's proposal for financial participation, the parties shall enter into negotiations to resolve the issues in accordance with section 4 of this act.

NEW SECTION. Sec. 7. (1) If the department and the local governmental entity are unable to reach an agreement within thirty calendar days after the department's proposal is first rejected, or within such additional time as mutually agreed to by the parties, the department's financial responsibility for the costs of (a) constructing any proposed storm water control facility and (b) operation and maintenance of existing and proposed storm water control facilities for the ensuing fiscal year of the local entity, shall be submitted to arbitration under this section.

(2) Each party shall submit to the other within four days of request, a final proposal on the department's financial responsibility for costs of (a) constructing any proposed storm water control facility and (b) operation and maintenance of existing and proposed storm water control facilities for the ensuing fiscal year of the local entity. At the same time, each party shall submit to the other the name of its selected arbitrator. The parties may continue to negotiate until an agreement is reached or a decision rendered by the panel of arbitrators.

As an alternative procedure, the two parties may agree to submit the dispute to a single arbitrator. If the parties cannot agree on the arbitrator within four days, the selection shall be made under subsection (5) of this section. The full costs of arbitration under this provision shall be shared equally by the parties to the dispute.

(3) The panel of arbitrators shall consist of three members appointed in the following manner:

(a) One member shall be appointed by the secretary of transportation;

(b) One member shall be appointed by the governing body of the local governmental entity;

(c) One member shall be appointed mutually by the members appointed by the secretary of transportation and the local governmental entity. The last member appointed shall be the chairman of the panel of arbitrators. No member appointed may be an employee of the parties.

(4) The department and the local governmental entity shall each pay the fees and expenses incurred by the arbitrator whom each selected. The fee and expenses of the chairman of the panel shall be shared equally by each party.

(5) If the third member has not been selected as provided in subsection (3) of this section within four days of notification, a list of three hydraulic engineers willing to serve as arbitrators shall be submitted to the parties by the American Arbitration Association. The two arbitrators selected by the secretary of transportation and the local governmental entity shall determine by lot which arbitrator shall remove the first name from the list submitted by the American Arbitration Association. The second arbitrator shall remove one additional name. The person whose name remains shall become the chairman of the panel of arbitrators and shall call a meeting within thirty days, or at such time mutually agreed to by the parties, at a location designated by the chairman.

(6) The panel of arbitrators may conduct formal or informal hearings to discuss the proposals submitted by both parties. The chairman of the panel of arbitrators may administer oaths, examine witnesses and documents, take testimony and receive evidence, issue subpoenas to compel the attendance of witnesses and the production of records, and delegate such powers to other members of the panel of arbitrators. The chairman of the panel of arbitrators may petition the superior court in Thurston county, or any county in which any hearing is held, to enforce the order of the chairman compelling the attendance of witnesses and the production of records.

(7) Within thirty days after its first meeting, a majority of the panel of arbitrators shall select the final proposal most consistent with the criteria for the department's financial participation as set forth in section 4 of this act. The final proposal selected constitutes the arbitration award and is final and binding.

Sec. 8. Section 1, chapter 315, Laws of 1983 and RCW 35.67.025 are each amended to read as follows:

Except as otherwise provided in section 2 of this act, any public entity and public property, including the state of Washington and state property, shall be subject to rates and charges for storm water control facilities to the same extent private persons and private property are subject to such rates and charges that are imposed by cities and towns pursuant to RCW 35.67.020.

Sec. 9. Section 2, chapter 315, Laws of 1983 and RCW 35.92.021 are each amended to read as follows:

Sec. 10. Section 3, chapter 315, Laws of 1983 and RCW 36.89.085 are each amended to read as follows:

Sec. 11. Section 4, chapter 315, Laws of 1983 and RCW 36.94.145 are each amended to read as follows:

Sec. 12. Section 5, chapter 315, Laws of 1983 and RCW 56.08.012 are each amended to read as follows:

Sec. 13. Section 16, chapter 153, Laws of 1961 as last amended by section 19, chapter 315, Laws of 1983 and RCW 86.15.160 are each amended to read as follows:

For the purposes of this chapter the supervisors may authorize:

(1) An annual excess ad valorem tax levy within any zone or participating zones when authorized by the voters of the zone or participating zones under RCW 84.52.052 and 84.52.054;

(2) An assessment upon property, including state property, specially benefited by flood control improvements or storm water control improvements imposed under chapter 86.09 RCW;

(3) Within any zone or participating zones an annual ad valorem property tax levy of not to exceed fifty cents per thousand dollars of assessed value when the levy will not take dollar rates that other taxing districts may lawfully claim and that will not cause the combined levies to exceed the constitutional and/or statutory limitations, and the additional levy, or any portion thereof, may also be made when dollar rates of other taxing units is released therefor by agreement with the other taxing units from their authorized levies;

(4) A charge, under RCW 36.89.080, for the furnishing of service to those who are receiving or will receive benefits from storm water control facilities and who are contributing to an increase in surface water runoff. Except as otherwise provided in section 2 of this act, any public entity and public property, including the state and state property, shall be liable for the charges to the same extent a private person and privately owned property is liable for the charges;

(5) The creation of local improvement districts and utility local improvement districts, the issuance of improvement district bonds and warrants, and the imposition, collection, and enforcement of special assessments on all property, including any state-owned or other publicly-owned property, specially benefited from improvements in the same manner as provided for counties by chapter 36.94 RCW.

Sec. 14. Section 7, chapter 136, Laws of 1967 ex. sess. as amended by section 22, chapter 315, Laws of 1983 and RCW 86.15.176 are each amended to read as follows:

The supervisors may provide by resolution for revenues by fixing rates and charges for the furnishing of service to those served((~~, including public entities,~~)) or receiving benefits from a flood control improvement including public entities, except as otherwise provided in section 2 of this act: PROVIDED, That the service charge shall be uniform for the same class of benefits or service. In classifying services furnished or benefits received the board may in its discretion consider the character and use of land and its water runoff characteristics and any other matters that present a reasonable difference as a ground for distinction. Service charges shall be applicable to a zone or participating zones. The disposition of all revenue from service charges shall be in accordance with RCW 86.15.130.

Sec. 15. Section 8, chapter 315, Laws of 1983 and RCW 90.03.500 are each amended to read as follows:

The legislature finds that increasing the surface water or storm water accumulation on or flow over real property, beyond that which naturally occurs on the real property, may cause severe damage to the real property and limit the gainful use or enjoyment of the real property, resulting in a tort, nuisance, or taking. The damage can arise from activities increasing the point or nonpoint flow of surface water or storm water over the real property, or altering or interrupting the natural drainage from the real property. The legislature finds that it is in the public interest to permit the construction and operation of public improvements to lessen the damage. The legislature further finds that it is in the public interest to provide for the equitable imposition of special assessments, rates, and charges to fund such improvements. This shall include the imposition of special assessments, rates, and charges on real property to fund that reasonable portion of the public improvements that alleviate the damage arising from activities that are the proximate cause of the damage on other real property. Except as otherwise provided in section 2 of this act, these special assessments, rates, and charges may be imposed on any publicly-owned, including state-owned, real property that causes such damage.

NEW SECTION. Sec. 16. Sections 1 through 7 of this act shall be added to chapter 47.28 RCW.