AN ACT Relating to emergency drought relief; amending RCW 43.83B.210; adding new sections to chapter 43.83B RCW; repealing RCW 43.83B.305, 43.83B.310, 43.83B.315, 43.83B.320, 43.83B.325, 43.83B.330, 43.83B.340, 43.83B.342, and 43.83B.344; and declaring an emergency.

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

NEW SECTION. Sec. 1. It is the intent of the legislature to provide emergency powers to the department of ecology to enable it to take actions, in a timely and expeditious manner, that are designed to alleviate hardships and reduce burdens on various water users and uses arising from drought conditions. As used in this chapter, "drought condition" means that water supplies for a geographical area or for a significant portion of a geographical area are below seventy-five percent of normal and the water shortage is likely to create undue hardships for various water uses and users.

NEW SECTION. Sec. 2. (1) Whenever it appears to the department of ecology that a drought condition either exists or is forecast to occur within the state or portions thereof, the department of ecology is authorized to issue orders, pursuant to rules previously adopted, to implement the powers as set forth in sections 3 through 5 of this act. The department shall, immediately upon the issuance of an order under this section, cause said order to be published in newspapers of general circulation in the areas of the state to which the order relates. Prior to the issuance of an order, the department shall (a) consult with and obtain the views of the federal and state government entities identified in the drought contingency plan developed by the department pursuant to RCW 43.83B.342, and (b) obtain the written approval of the governor. Orders issued under this section shall be deemed orders for the purposes of chapter 34.05 RCW.

(2) Any order issued under subsection (1) of this section shall contain a termination date for the order. The termination date shall be not later than one calendar year from the date the order is issued. Although the department may, with the written approval of the governor, change the termination date by amending the order, no such amendment or series of amendments may have the effect of extending its termination to a date which is later than two calendar years after the issuance of the order.

(3) The provisions of subsection (2) of this section do not preclude the issuance of more than one order under subsection (1) of this section for different areas of the state or sequentially for the same area as the need arises for such an order or orders.

NEW SECTION. Sec. 3. Upon the issuance of an order under section 2 of this act, the department of ecology shall be empowered to:

(1) Authorize emergency withdrawal of public surface and ground waters, including dead storage within reservoirs, and associated physical works on a temporary basis, for a discrete period of time. The termination date for the authority to make such an emergency withdrawal shall be not later than the termination date of the order issued under section 2 of this act under which the power to authorize the withdrawal is established. The department of ecology may issue such withdrawal authorization when, after investigation and after providing appropriate federal, state, and local governmental bodies an opportunity to comment, the following are found:

(a) The waters proposed for withdrawal are to be used in relation to beneficial use involving a previously established activity or purpose;

(b) The previously established activity or purpose was furnished water through rights applicable to the use of a public water body that cannot be exercised due to the lack of water arising from natural drought conditions; and

(c) The proposed withdrawal will not reduce flows or levels below essential minimums necessary (i) to assure the maintenance of fisheries requirements, and (ii) to protect federal and state interests including, among others, power generation, navigation, and existing water rights.

All withdrawal authorizations issued under this section shall contain provisions that allow for termination of withdrawals, in whole or in part, whenever withdrawals will conflict with flows and levels as provided in subsection (1)(c) of this section. Domestic and irrigation uses of public surface and ground waters shall be given priority in determining "beneficial uses." As to water withdrawal and associated works authorized under this section, the requirements of chapter 43.21C RCW and public bidding requirements as otherwise provided by law are waived and inapplicable. All state and local agencies with authority to issue permits or other authorizations for such works shall, to the extent possible, expedite the processing of the permits or authorizations in keeping with the emergency nature of the requests and shall provide a decision to the applicant within fifteen calendar days of the date of application. All state departments or other agencies having jurisdiction over state or other public lands if such lands are necessary to effectuate the withdrawal authorizations issued under this section, shall provide short-term easements or other appropriate property interest upon the payment of the fair market value: PROVIDED, That this mandate shall not apply to any lands of the state that are reserved for a special purpose or use that cannot properly be carried out if the property interest were conveyed.

(2) Approve the temporary change in purpose, place of use, or point of diversion, consistent with existing state policy allowing transfer or lease of waters between willing parties, as provided for in RCW 90.03.380, 90.03.390, and 90.44.100. However, that compliance with any requirements of (a) notice of newspaper publication of these sections or (b) the state environmental policy act, chapter 43.21C RCW, shall not be required when such changes are necessary to respond to drought conditions as determined by the department of ecology. An approval of a temporary change of a water right as authorized under this subsection shall not be admissible as evidence in either supporting or contesting the validity of water claims in @56State of Washington, Department of Ecology v. Acquavella, Yakima county superior court number 77-2-01484-5 or any similar proceeding where the existence of a water right is at issue.

(3) Employ additional persons for specified terms of time, consistent with the term of a drought condition, as are necessary to ensure the successful performance of the activities associated with implementing the emergency drought program of this chapter.

(4) Revise the drought contingency plan previously developed by the department under RCW 43.83B.342; and

(5) Acquire needed emergency drought-related equipment.

NEW SECTION. Sec. 4. (1) The department of ecology is authorized to make loans, grants, or combinations of loans and grants from emergency agricultural water supply funds under RCW 43.83B.300 when required to provide water to alleviate emergency drought conditions to assure the survival of irrigated crops and the state's fisheries. The department of ecology may make the loans, grants, or combinations of loans and grants as matching funds in any case where federal, local, or other funds have been made available on a matching basis. A loan or combination loan and grant shall not exceed fifty percent of the approved eligible project costs for any single proposed project: PROVIDED, That for purposes authorized by RCW 43.83B.300 and 43.83B.385, the department may make a loan up to ninety percent of the total eligible project cost or combination loan and grant up to one hundred percent of the total single project cost. The grant portion for any single project shall not exceed twenty percent of the total project cost except that, for activities forecast to have fifty percent or less of normal seasonal water supplies, the grant portion for any single project or entity shall not exceed forty percent of the total project cost. No single entity shall receive more than ten percent of the total funds available for drought relief. These funds shall not be used for nonagricultural drought relief purposes unless there are no other capital budget funds available for these purposes. The total expenditures for nonagricultural drought relief purposes shall not exceed ten percent of the total funds available for drought relief purposes on March 15, 1988.

(2) Funding for drought relief and administration pursuant to sections 2 through 6 of this act shall be from emergency drought appropriations as provided in biennial appropriations.

NEW SECTION. Sec. 5. The department shall adopt such rules as are necessary to ensure the successful implementation of this act.

NEW SECTION. Sec. 6. Nothing in this act shall:

(1) Authorize any interference whatsoever with existing water rights;

(2) Authorize the establishment of rights to withdrawal of waters of a permanent nature or of rights with any priority;

(3) Authorize the establishment of a water right under RCW 90.03.250 or 90.44.060;

(4) Preclude any person from filing an application pursuant to RCW 90.03.250 or 90.44.060.

Sec. 7. Section 3, chapter 295, Laws of 1975 1st ex. sess. as last amended by section 1, chapter 46, Laws of 1988 and RCW 43.83B.210 are each amended to read as follows:

The department of ecology is authorized to make loans or grants or combinations thereof: (1) From funds under RCW 43.83B.010 through 43.83B.110 to eligible public bodies as defined in RCW 43.83B.050 for rehabilitation or betterment of agricultural water supply facilities, and/or construction of agricultural water supply facilities required to develop new irrigated lands; or (2) from emergency agricultural water supply funds under RCW 43.83B.300 when required to provide water to alleviate emergency drought conditions to assure the survival of irrigated crops and the state's fisheries. The department of ecology may make such loans or grants or combinations thereof as matching funds in any case where federal, local, or other funds have been made available on a matching basis. A loan or combination loan and grant shall not exceed fifty percent of the approved eligible project costs for any single proposed project: PROVIDED, That for purposes authorized by RCW 43.83B.300((~~, 43.83B.310~~)), section 3 of this act, and 43.83B.385 the department of ecology may make a loan up to ninety percent of the total eligible project cost or combination loan and grant up to one hundred percent of the total single project cost and the grant portion for any single project shall not exceed twenty percent of the total project cost except that, for activities forecast to have fifty percent or less of normal seasonal water supplies, the grant portion for any single project or entity shall not exceed forty percent of the total project cost. No single entity shall receive more than ten percent of the total funds available for drought relief. These funds shall not be used for nonagricultural drought relief purposes unless there are no other capital budget funds available for these purposes. The total expenditures for nonagricultural drought relief purposes shall not exceed ten percent of the total funds available for drought relief purposes on March 15, 1988. Any grant or grant portion of a combination loan and grant from funds under RCW 43.83B.010 through 43.83B.110 for any single proposed project shall not exceed fifteen percent of the eligible project costs: PROVIDED, That the fifteen percent limitation established herein shall not be applicable to project commitments which the director or deputy director of the state department of ecology made to the bureau of reclamation of the United States department of interior for providing state funding at thirty-five percent of project costs during the period between August 1, 1974, and June 30, 1975.

The department of social and health services is authorized to make grants of up to forty percent of the cost of construction of any eligible project necessitated by the 1977 drought conditions. Such grants may be made only to public bodies as defined in RCW 43.83B.050 for municipal and industrial water supply and distribution facilities.

NEW SECTION. Sec. 8. The following acts or parts of acts are each repealed:

(1) Section 2, chapter 1, Laws of 1977 ex. sess. and RCW 43.83B.305;

(2) Section 3, chapter 1, Laws of 1977 ex. sess., section 2, chapter 343, Laws of 1987, section 3, chapter 46, Laws of 1988 and RCW 43.83B.310;

(3) Section 4, chapter 1, Laws of 1977 ex. sess. and RCW 43.83B.315;

(4) Section 5, chapter 1, chapter 1977 ex. sess., section 3, chapter 343, Laws of 1987, section 11, chapter 523, Laws of 1987 and RCW 43.83B.320;

(5) Section 6, chapter 1, Laws of 1977 ex. sess. and RCW 43.83B.325;

(6) Section 7, chapter 1, Laws of 1977 ex. sess. and RCW 43.83B.330;

(7) Section 9, chapter 1, Laws of 1977 ex. sess. and RCW 43.83B.340;

(8) Section 8, chapter 343, Laws of 1987, section 4, chapter 46, Laws of 1988 and RCW 43.83B.342; and

(9) Section 9, chapter 343, Laws of 1987, section 5, chapter 46, Laws of 1988 and RCW 43.83B.344.

NEW SECTION. Sec. 9. Sections 1 through 6 of this act are each added to chapter 43.83B RCW.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 11. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.