6334-S AMH AG H5241.2 [atlas:amendment]

6334-S AMH AG H5241.2

SSB 6334 - H COMM AMD

By Committee on Agriculture & Ecology

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 90.03.340 and 1987 c 109 s 90 are each amended to read as follows:

(1) Except as provided in RCW 90.03.345, the priority date of a right acquired by appropriation shall relate back to the date of filing of the original application with the department.

(2) For the purpose of vesting the priority date of an application and, therefore, any right acquired through the application, a document filed with the department on or after January 1, 1997, shall be considered to be an application for a new appropriative right to the use of water if it contains the following information: The name and address of the applicant; a general description of the proposed water withdrawal and use project; the location of the proposed withdrawal; the location of the proposed use; and the type of the proposed beneficial use. The document may, at the applicant's discretion, contain more information than is required for this purpose; however, a document filed after January 1, 1997, containing less than this minimum information shall not be considered to be an application for this purpose.

Sec. 2. RCW 90.03.270 and 1987 c 109 s 85 are each amended to read as follows:

Upon receipt of an application it shall be the duty of the department to make an endorsement thereon of the date of its receipt, and to keep a record of same. If upon examination, the application is found to be defective, it shall be returned to the applicant for correction or completion, and the date and the reasons for the return thereof shall be endorsed thereon and made a record in his office. No application filed with the department before January 1, 1997, and no document that qualifies as an application under RCW 90.03.340(2) shall lose its priority of filing on account of such defects, provided acceptable maps, drawings and such data as is required by the department shall be filed with the department within such reasonable time as it shall require.

NEW SECTION. Sec. 3. A new section is added to chapter 90.03 RCW to read as follows:

A water right applicant may appeal to the pollution control hearings board a determination by the department regarding the nature and extent of the information needed to make determinations regarding the application for or the processing of a water right permit.

Sec. 4. RCW 90.03.320 and 1987 c 109 s 67 are each amended to read as follows:

(1) Actual construction work shall be commenced on any project for which permit has been granted within such reasonable time as shall be prescribed by the department, and shall thereafter be prosecuted with diligence and completed within the time prescribed by the department. The department, in fixing the time for the commencement of the work, or for the completion thereof and the application of the water to the beneficial use prescribed in the permit, shall take into consideration the cost and magnitude of the project and the engineering and physical features to be encountered, and shall allow such time as shall be reasonable and just under the conditions then existing, having due regard for the public welfare and public interests affected: and, for good cause shown, it shall extend the time or times fixed as aforesaid, and shall grant such further period or periods as may be reasonably necessary, having due regard to the good faith of the applicant and the public interests affected.

(2) For the purposes of this section, "good cause" includes but is not limited to the following circumstances that prevent work completion within the prescribed period:

(a) Active service in the armed forces of the United States during a military crisis;

(b) Nonvoluntary service in the armed forces of the United States;

(d) Delays in securing other permits necessary to proceed with the development;

(e) A single transfer in ownership of the property;

(f) Implementation of water efficiency measures, including conservation and reclaimed water use;

(g) Encountering unanticipated physical impediments to construction; and

(h) Encountering generally depressed economic conditions.

(3) If the terms of the permit or extension thereof((,)) are not complied with, the department shall give notice by ((~~registered~~)) certified mail that ((~~such~~)) the permit will be canceled unless the ((~~holders thereof shall~~)) permittee shows cause within sixty days why the ((~~same~~)) permit should not be ((so)) canceled. If cause ((be)) is not shown, ((~~said~~)) the permit shall be canceled through the department's issuance of an order of cancellation served on the holder of the permit by certified mail.

NEW SECTION. Sec. 5. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department shall establish streamlined procedures for its processing of applications for de minimis appropriations of surface water, but only if the department has reserved and set aside the water for future beneficial use under RCW 90.54.050.

(2) Applications for appropriating water under this section shall be made on a form provided by the department. Within sixty days of the publication of a notice in accordance with RCW 90.03.280, the department shall issue or deny a permit for the requested appropriation. If the department denies the application, it shall explain its determination in writing.

(3) The department shall waive the evaluation and report requirements of RCW 90.03.290 if at the time the reservation was established the department determined that use of the reserved water would not impair water rights existing before the reservation was established and would not be detrimental to the public interest.

(4) Unless the context clearly requires otherwise, as used in this chapter, "de minimis appropriation" means diversion and use of surface water in an amount not exceeding four hundred fifty gallons per day and not exceeding an instantaneous diversion rate of two one-hundredths cubic feet per second.

(5) The department shall develop, in cooperation with the department of health, informational materials regarding the risks of drinking untreated surface water. This informational material may be provided to prospective applicants. The department shall attach the informational materials to any permit that is approved under this section.

NEW SECTION. Sec. 6. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department may authorize short-term uses of water without publication of the notice required under RCW 90.03.280 and without the report required under RCW 90.03.290. However, before approving a short-term use, the department shall determine to its satisfaction that the substantive criteria in RCW 90.03.290 are met and that a stream affected by a short-term use will be retained with minimally sufficient flows to maintain instream uses and to protect existing water rights. The department shall adopt and provide application forms for persons applying for a short-term use and shall expedite its consideration of short-term use requests to the extent practicable.

(2) For the purposes of this chapter, "short-term use" means a use of water that will not exceed one year in duration. Short-term uses include but are not limited to use in construction, dust control, dewatering, and short-term planned fire suppression activities.

Sec. 7. RCW 43.21B.240 and 1989 c 175 s 105 are each amended to read as follows:

The department and air authorities shall not have authority to hold adjudicative proceedings pursuant to the Administrative Procedure Act, chapter 34.05 RCW. ((~~Such~~)) All other hearings, except for water‑related agency actions as defined in section 13 of this act that are appealed directly to a superior court as provided in section 10 of this act shall be held by the pollution control hearings board.

Sec. 8. RCW 43.27A.190 and 1987 c 109 s 11 are each amended to read as follows:

Notwithstanding and in addition to any other powers granted to the department of ecology, whenever it appears to the department that a person is violating or is about to violate any of the provisions of the following:

(1) Chapter 90.03 RCW; or

(2) Chapter 90.44 RCW; or

(3) Chapter 86.16 RCW; or

(4) Chapter 43.37 RCW; or

(5) Chapter 43.27A RCW; or

(6) Any other law relating to water resources administered by the department; or

(7) A rule or regulation adopted, or a directive or order issued by the department relating to subsections (1) through (6) of this section; the department may cause a written regulatory order to be served upon ((~~said~~)) the person either personally, or by registered or certified mail delivered to addressee only with return receipt requested and acknowledged by him or her. The order shall specify the provision of the statute, rule, regulation, directive or order alleged to be or about to be violated, and the facts upon which the conclusion of violating or potential violation is based, and shall order the act constituting the violation or the potential violation to cease and desist or, in appropriate cases, shall order necessary corrective action to be taken with regard to such acts within a specific and reasonable time. The regulation of a headgate or controlling works as provided in RCW 90.03.070, by a watermaster, stream patrolman, or other person so authorized by the department shall constitute a regulatory order within the meaning of this section. A regulatory order issued hereunder shall become effective immediately upon receipt by the person to whom the order is directed, except for regulations under RCW 90.03.070 which shall become effective when a written notice is attached as provided therein. Any person aggrieved by such order may appeal the order pursuant to RCW 43.21B.310 unless the order is a water‑related agency action of the department, as defined in section 13 of this act, in which case it may be appealed either to the pollution control hearings board or directly to a superior court as provided in section 10 of this act.

Sec. 9. RCW 90.66.080 and 1979 c 3 s 8 are each amended to read as follows:

The department is hereby empowered to promulgate such rules as may be necessary to carry out the provisions of this chapter. Decisions of the department, other than rule making, shall be subject to review by the pollution control hearings board or a superior court in accordance with ((~~chapter 43.21B RCW~~)) section 13 of this act.

NEW SECTION. Sec. 10. A new section is added to chapter 43.21B RCW to read as follows:

A person who is aggrieved or adversely affected by a water‑related agency action as defined by section 13 of this act may appeal the decision either to the pollution control hearings board pursuant to RCW 43.21B.310 or directly to a superior court. Any direct appeal to a superior court as authorized by this section shall be de novo. An appeal of a decision regarding a withdrawal shall be filed in the county in which the water withdrawal would or does take place.

NEW SECTION. Sec. 11. A new section is added to chapter 43.21B RCW to read as follows:

In all appeals of water‑related agency actions by the department, as defined in section 13 of this act, over which the hearings board has jurisdiction, a party taking an appeal may elect either a formal or an informal hearing. The election shall be made according to rules of practice and procedure adopted by the hearings board. This section shall not be construed to modify RCW 43.21B.190. In the event that appeals are taken from the same decision, order, or determination, as the case may be, by different parties and only one of such parties elects an informal hearing, an informal hearing shall be granted.

NEW SECTION. Sec. 12. A new section is added to chapter 43.21B RCW to read as follows:

In all appeals involving a decision or an order of the hearings board after an informal hearing of a water‑related agency action by the department, as defined in section 13 of this act, the appeal to superior court shall be de novo. The petition shall be filed in the superior court specified in section 10 of this act. Such appeal may be perfected by filing with the clerk of the superior court a notice of appeal, and by serving a copy thereof by mail, or personally on the director or on the board as the case may be. The hearings board shall serve upon the appealing party, the director, and on any other party appearing at the hearings board's proceeding, and file with the clerk of the court before trial, a certified copy of the hearings board's decision and order. Appellate review of a decision of the superior court may be sought as in other civil cases. No bond may be required on appeals to the superior court or on review by the supreme court unless specifically required by the judge of the superior court.

NEW SECTION. Sec. 13. A new section is added to chapter 43.21B RCW to read as follows:

Unless the context clearly requires otherwise, as used in this chapter "water-related agency action" includes (1) a decision to grant or deny a permit or certificate for a right to the beneficial use of water or to amend, change, or transfer such a right; (2) a decision to enforce the conditions of a permit for, or right to, the beneficial use of water or to require any person to discontinue the use of water; and (3) a decision regarding the nature and extent of the information needed to make determinations regarding the application for or processing of a water right permit."

SSB 6334 - H COMM AMD

By Committee on Agriculture & Ecology

On page 1, line 1 of the title, after "rights;" strike the remainder of the title and insert "amending RCW 90.03.340, 90.03.270, 90.03.320, 43.21B.240, 43.27A.190, and 90.66.080; adding new sections to chapter 90.03 RCW; and adding new sections to chapter 43.21B RCW."