BP BHEAD INT H

AN ACT Relating to water resources; amending RCW 43.21A.064, 86.16.025, 90.03.350, and 90.03.370; reenacting and amending RCW 86.16.035; adding a new section to chapter 43.21A RCW; and creating a new section.

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

NEW SECTION. Sec. 1. The legislature finds and declares:

(1) Under federal law, the federal energy regulatory commission has exclusive control over the construction, operation, and maintenance of dams located in navigable waters. The federal energy regulatory commission, pursuant to the federal power act, licenses hydropower projects in navigable waters, determines compliance with applicable federal and state laws, and regularly and extensively inspects facilities for safety.

(2) Nothing in this act is intended to alter or affect the department of ecology's role with respect to (a) its authority under state statute to participate in the federal process of licensing hydropower projects, or (b) state compliance with federal statutes such as the coastal zone management act and the clean water act.

NEW SECTION. Sec. 2. A new section is added to chapter 43.21A RCW to read as follows:

Neither the director nor the department has any authority to regulate, supervise, or assure the safety of any project that requires a license under the federal power act. This section applies to the design, construction, maintenance, modification, and operation of any such dam, canal, ditch, hydraulic power plant, reservoir, project, or other work, system, or plant. With respect to the safety of such project, no person is required to:

(1) Submit proposals, plans, specifications, or other documents for approval by the department;

(2) Seek a permit, license, or other form of permission or authorization from the department;

(3) Submit to inspection by the department; or

(4) Change the design, construction, modification, maintenance, or operation of such facilities at the demand of the department.

Sec. 3. RCW 43.21A.064 and 1977 c 75 s 46 are each amended to read as follows:

Subject to section 2 of this act, the director of the department of ecology shall have the following powers and duties:

(1) The supervision of public waters within the state and their appropriation, diversion, and use, and of the various officers connected therewith;

(2) Insofar as may be necessary to assure safety to life or property, ((he)) the director shall inspect the construction of all dams, canals, ditches, irrigation systems, hydraulic power plants, and all other works, systems, and plants pertaining to the use of water, and ((he)) may require such necessary changes in the construction or maintenance of said works, to be made from time to time, as will reasonably secure safety to life and property;

(3) ((He)) The director shall regulate and control the diversion of water in accordance with the rights thereto;

(4) ((He)) The director shall determine the discharge of streams and springs and other sources of water supply, and the capacities of lakes and of reservoirs whose waters are being or may be utilized for beneficial purposes;

(5) ((He)) The director shall keep such records as may be necessary for the recording of the financial transactions and statistical data thereof, and shall procure all necessary documents, forms, and blanks. ((He)) The director shall keep a seal of the office, and all certificates by ((~~him~~)) the director covering any of his or her acts or the acts of ((~~his~~)) the office, or the records and files of ((~~his~~)) the office, under such seal, shall be taken as evidence thereof in all courts;

(6) ((He)) The director shall render when required by the governor, a full written report of the work of ((~~his~~)) the office with such recommendations for legislation as ((he)) the director may deem advisable for the better control and development of the water resources of the state;

(7) The director and duly authorized deputies may administer oaths;

(8) ((He)) The director shall establish and promulgate rules governing the administration of chapter 90.03 RCW;

(9) ((He)) The director shall perform such other duties as may be prescribed by law.

Sec. 4. RCW 86.16.025 and 1989 c 64 s 2 are each amended to read as follows:

Subject to section 2 of this act, with respect to such features as may affect flood conditions, the department shall have authority to examine, approve or reject designs and plans for any structure or works, public or private, to be erected or built or to be reconstructed or modified upon the banks or in or over the channel or over and across the floodway of any stream or body of water in this state.

Sec. 5. RCW 86.16.035 and 1987 c 523 s 9 and 1987 c 109 s 53 are each reenacted and amended to read as follows:

Subject to section 2 of this act, the department of ecology shall have supervision and control over all dams and obstructions in streams, and may make reasonable regulations with respect thereto concerning the flow of water which ((he)) the department deems necessary for the protection to life and property below such works from flood waters.

Sec. 6. RCW 90.03.350 and 1987 c 109 s 91 are each amended to read as follows:

Except as provided in section 2 of this act, any person, corporation or association intending to construct or modify any dam or controlling works for the storage of ten acre feet or more of water, shall before beginning said construction or modification, submit plans and specifications of the same to the department for examination and approval as to its safety. Such plans and specifications shall be submitted in duplicate, one copy of which shall be retained as a public record, by the department, and the other returned with its approval or rejection endorsed thereon. No such dam or controlling works shall be constructed or modified until the same or any modification thereof shall have been approved as to its safety by the department. Any such dam or controlling works constructed or modified in any manner other than in accordance with plans and specifications approved by the department or which shall not be maintained in accordance with the order of the department shall be presumed to be a public nuisance and may be abated in the manner provided by law, and it shall be the duty of the attorney general or prosecuting attorney of the county wherein such dam or controlling works, or the major portion thereof, is situated to institute abatement proceedings against the owner or owners of such dam or controlling works, whenever he is requested to do so by the department.

Sec. 7. RCW 90.03.370 and 1987 c 109 s 93 are each amended to read as follows:

Except as provided in section 2 of this act, all applications for reservoir permits shall be subject to the provisions of RCW 90.03.250 through 90.03.320. But the party or parties proposing to apply to a beneficial use the water stored in any such reservoir shall also file an application for a permit, to be known as the secondary permit, which shall be in compliance with the provisions of RCW 90.03.250 through 90.03.320. Such secondary application shall refer to such reservoir as its source of water supply and shall show documentary evidence that an agreement has been entered into with the owners of the reservoir for a permanent and sufficient interest in said reservoir to impound enough water for the purposes set forth in said application. When the beneficial use has been completed and perfected under the secondary permit, the department shall take the proof of the water users under such permit and the final certificate of appropriation shall refer to both the ditch and works described in the secondary permit and the reservoir described in the primary permit.