S-2157

AN ACT Relating to environmental appeals; amending RCW 43.21B.110, 43.21B.130, 43.21B.170, 43.21B.180, 43.21B.240, 43.21B.305, 43.21B.310, 43.27A.190, 75.20.140, 90.03.383, 90.14.130, 90.14.190, 90.14.200, 90.58.180, and 90.66.080; reenacting and amending RCW 34.05.514; and adding a new section to chapter 43.21B RCW.

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

Sec. 1. RCW 34.05.514 and 1995 c 347 s 113 and 1995 c 292 s 9 are each reenacted and amended to read as follows:

(1) Except as provided in subsections (2) and (3) of this section, proceedings for review under this chapter shall be instituted by paying the fee required under RCW 36.18.020 and filing a petition in the superior court, at the petitioner's option, for (a) Thurston county, (b) the county of the petitioner's residence or principal place of business, or (c) in any county where the property owned by the petitioner and affected by the contested decision is located.

(2) For proceedings involving institutions of higher education, the petition shall be filed either in the county in which the principal office of the institution involved is located or in the county of a branch campus if the action involves such branch.

(3) For proceedings involving water quantity decisions of the department of ecology, as defined in section 17 of this act, relating to water withdrawal, instream flow, and water management plans, the petition shall be filed in the superior court specified in section 17 of this act. For proceedings involving the relinquishment of a water right, the petition shall be filed in the superior court specified in RCW 90.14.130.

Sec. 2. RCW 43.21B.110 and 1993 c 387 s 22 are each amended to read as follows:

(1) The pollution control hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, ((~~the administrator of the office of marine safety,~~)) and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

(a) Civil penalties imposed pursuant to 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.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, ((~~90.14.130,~~)) and 90.48.120.

(c) The issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, or the modification of the conditions or the terms of a waste disposal permit.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(f) Any other decision by the department((~~, the administrator of the office of marine safety,~~)) or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(2) The jurisdiction of the pollution control hearings board is further limited as follows:

(a) The hearings board has no jurisdiction to review water quantity decisions, as defined in section 17 of this act, that are appealed directly to a superior court, to review orders pertaining to the relinquishment of a water right issued pursuant to RCW 90.14.130, or to review proceedings regarding general adjudications of water rights conducted pursuant to chapter 90.03 or 90.44 RCW.

(b) The following hearings shall not be conducted by the hearings board:

((~~(a)~~)) (i) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

((~~(b)~~)) (ii) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

((~~(c) Proceedings by the department relating to general adjudications of water rights pursuant to chapter 90.03 or 90.44 RCW.~~

~~(d)~~)) (iii) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) ((~~Review of~~)) Rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

Sec. 3. RCW 43.21B.130 and 1990 c 65 s 3 are each amended to read as follows:

The administrative procedure act, chapter 34.05 RCW, shall apply to the appeal of rules and regulations adopted by the board to the same extent as it applied to the review of rules and regulations adopted by the directors and/or boards or commissions of the various departments whose powers, duties and functions were transferred by section 6, chapter 62, Laws of 1970 ex. sess. to the department. ((All other decisions and orders of the director and all decisions of air pollution control boards or authorities established pursuant to chapter 70.94 RCW shall be subject to review by the hearings board as provided in this chapter.))

Sec. 4. RCW 43.21B.170 and 1995 c 382 s 3 are each amended to read as follows:

All proceedings before the hearings board or any of its members shall be conducted in accordance with such rules of practice and procedure as the hearings board may prescribe. The rules adopted by the board must include provisions for the following: (1) Within thirty days after the appeal petition is filed, the agency responsible for the decision under review is required to furnish to the hearings board and the party filing the appeal a transcript of all oral evidence and a copy of all documentary evidence considered by the agency in making its decision; (2) the hearings board may not accept from the agency responsible for the decision under review evidence which is not relevant to the findings set forth in the decision; (3) if the observations of individuals were relied upon in making the decision, the agency responsible for the decision under review is required to identify those individuals and make them available for examination and cross-examination before the hearings board; and (4) the agency responsible for the decision under review has the burden of proving that its decision is justified, including the burden of moving forward with the evidence. The hearings board shall publish such rules and arrange for the reasonable distribution thereof.

Sec. 5. RCW 43.21B.180 and 1994 c 253 s 6 are each amended to read as follows:

Judicial review of a decision of the hearings board may be obtained only pursuant to RCW 34.05.510 through 34.05.598, except that, at the option of the party or parties appealing to the hearings board, judicial review of a decision of the hearings board in superior court shall be de novo with the burden of proof placed on the agency responsible for the decision under review. The director shall have the same right of review from a decision made pursuant to RCW 43.21B.110 as does any person.

Sec. 6. 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 hearings, except those involving water quantity decisions, as defined in section 17 of this act, that are appealed directly to a superior court, and appeals of orders pertaining to the relinquishment of a water right issued pursuant to RCW 90.14.130, shall be held by the pollution control hearings board.

Sec. 7. RCW 43.21B.305 and 1994 c 253 s 5 are each amended to read as follows:

In an appeal that involves a penalty of five thousand dollars or less, and in an appeal relating to a water quantity decision as defined in section 17 of this act, the appeal may be heard by one member of the board, whose decision shall be the final decision of the board. The board shall define by rule alternative procedures to expedite small appeals. These alternatives may include: Mediation, upon agreement of all parties unless initiated as provided in section 17 of this act; submission of testimony by affidavit; conducting hearing by telephone; or other forms that may lead to less formal and faster resolution of appeals. The board shall provide for the conduct of mediation conferences and hearings pertaining to a water quantity decision, as defined in section 17 of this act, in the general area of the petitioner's residence.

Sec. 8. RCW 43.21B.310 and 1992 c 73 s 3 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, any order issued by the department((~~, the administrator of the office of marine safety,~~)) or authority pursuant to RCW 70.94.211, 70.94.332, 70.105.095, 43.27A.190, 86.16.020, 88.46.070, or 90.48.120(2) or any provision enacted after July 26, 1987, or any permit, certificate, or license issued by the department may be appealed to the pollution control hearings board if the appeal is filed with the board and served on the department or authority within thirty days after receipt of the order. Except as provided under chapter 70.105D RCW, ((~~this is~~)) these are the exclusive means of appeal of such an order.

((~~(2)~~)) (a) The department, the administrator, or the authority in its discretion may stay the effectiveness of an order during the pendency of such an appeal.

((~~(3)~~)) (b) At any time during the pendency of an appeal of such an order to the board, the appellant may apply pursuant to RCW 43.21B.320 to the hearings board for a stay of the order or for the removal thereof.

((~~(4)~~)) (c) Any appeal before the hearings board must contain the following in accordance with the rules of the hearings board:

((~~(a)~~)) (i) The appellant's name and address;

((~~(b)~~)) (ii) The date and docket number of the order, permit, or license appealed;

((~~(c)~~)) (iii) A description of the substance of the order, permit, or license that is the subject of the appeal;

((~~(d)~~)) (iv) A clear, separate, and concise statement of every error alleged to have been committed;

((~~(e)~~)) (v) A clear and concise statement of facts upon which the requester relies to sustain his or her statements of error; and

((~~(f)~~)) (vi) A statement setting forth the relief sought.

((~~(5)~~)) (d) Upon failure to comply with any final order of the department or the administrator, the attorney general, on request of the department or the administrator, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary, including injunctive relief, to insure compliance with the order. The air authorities may bring similar actions to enforce their orders.

((~~(6)~~)) (e) An appealable decision or order shall be identified as such and shall contain a conspicuous notice to the recipient that it may be appealed only by filing an appeal with the hearings board and serving it on the department within thirty days of receipt.

(2) Water quantity decisions of the department, as defined in section 17 of this act, may be appealed either to the pollution control hearings board or directly to a superior court as provided in section 17 of this act. Appeals of orders pertaining to the relinquishment of a water right are filed in superior court as provided by RCW 90.14.130.

Sec. 9. 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 or if the order is a water quality decision, as defined in section 17 of this act, pursuant to section 17 of this act.

Sec. 10. RCW 75.20.140 and 1995 c 382 s 7 are each amended to read as follows:

(1) In all appeals, the hydraulic appeals board shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions, but such powers shall be exercised in conformity with chapter 34.05 RCW.

(2) In all appeals, the hydraulic appeals board, and each member thereof, shall be subject to all duties imposed upon and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings.

(3) All proceedings before the hydraulic appeals board or any of its members shall be conducted in accordance with such rules of practice and procedure as the board may prescribe. Such rules shall be published and distributed.

(4) Judicial review of a decision of the hydraulic appeals board may be obtained only pursuant to RCW 34.05.510 through 34.05.598.

(5) At the option of the applicant for hydraulic approval, judicial review of a decision of the hydraulic appeals board shall be de novo with the burden of proof placed upon the department.

Sec. 11. RCW 90.03.383 and 1991 c 350 s 1 are each amended to read as follows:

(1) The legislature recognizes the value of interties for improving the reliability of public water systems, enhancing their management, and more efficiently utilizing the increasingly limited resource. Given the continued growth in the most populous areas of the state, the increased complexity of public water supply management, and the trend toward regional planning and regional solutions to resource issues, interconnections of public water systems through interties provide a valuable tool to ensure reliable public water supplies for the citizens of the state. Public water systems have been encouraged in the past to utilize interties to achieve public health and resource management objectives. The legislature finds that it is in the public interest to recognize interties existing and in use as of January 1, 1991, and to have associated water rights modified by the department of ecology to reflect current use of water through those interties, pursuant to subsection (3) of this section. The legislature further finds it in the public interest to develop a coordinated process to review proposals for interties commencing use after January 1, 1991.

(2) For the purposes of this section, the following definitions shall apply:

(a) "Interties" are interconnections between public water systems permitting exchange or delivery of water between those systems for other than emergency supply purposes, where such exchange or delivery is within established instantaneous and annual withdrawal rates specified in the systems' existing water right permits or certificates, or contained in claims filed pursuant to chapter 90.14 RCW, and which results in better management of public water supply consistent with existing rights and obligations. Interties include interconnections between public water systems permitting exchange or delivery of water to serve as primary or secondary sources of supply, but do not include development of new sources of supply to meet future demand.

(b) "Service area" is the area designated in a water system plan or a coordinated water system plan pursuant to chapter 43.20 or 70.116 RCW respectively. When a public water system does not have a designated service area subject to the approval process of those chapters, the service area shall be the designated place of use contained in the water right permit or certificate, or contained in the claim filed pursuant to chapter 90.14 RCW.

(3) Public water systems with interties existing and in use as of January 1, 1991, or that have received written approval from the department of health prior to that date, shall file written notice of those interties with the department of health and the department of ecology. The notice may be incorporated into the public water system's five-year update of its water system plan, but shall be filed no later than June 30, 1996. The notice shall identify the location of the intertie; the dates of its first use; the purpose, capacity, and current use; the intertie agreement of the parties and the service areas assigned; and other information reasonably necessary to modify the water right permit. Notwithstanding the provisions of RCW 90.03.380 and 90.44.100, for public water systems with interties existing and in use as of January 1, 1991, the department of ecology, upon receipt of notice meeting the requirements of this subsection, shall, as soon as practicable, modify the place of use descriptions in the water right permits, certificates, or claims to reflect the actual use through such interties, provided that the place of use is within service area designations established in a water system plan approved pursuant to chapter 43.20 RCW, or a coordinated water system plan approved pursuant to chapter 70.116 RCW, and further provided that the water used is within the instantaneous and annual withdrawal rates specified in the water right permit and that no outstanding complaints of impairment to existing water rights have been filed with the department of ecology prior to September 1, 1991. Where such complaints of impairment have been received, the department of ecology shall make all reasonable efforts to resolve them in a timely manner through agreement of the parties or through available administrative remedies.

(4) Notwithstanding the provisions of RCW 90.03.380 and 90.44.100, exchange or delivery of water through interties commencing use after January 1, 1991, shall be permitted when the intertie improves overall system reliability, enhances the manageability of the systems, provides opportunities for conjunctive use, or delays or avoids the need to develop new water sources, and otherwise meets the requirements of this section, provided that each public water system's water use shall not exceed the instantaneous or annual withdrawal rate specified in its water right authorization, shall not adversely affect existing water rights, and shall not be inconsistent with state-approved plans such as water system plans or other plans which include specific proposals for construction of interties. Interties commencing use after January 1, 1991, shall not be inconsistent with regional water resource plans developed pursuant to chapter 90.54 RCW.

(5) For public water systems subject to the approval process of chapter 43.20 RCW or chapter 70.116 RCW, proposals for interties commencing use after January 1, 1991, shall be incorporated into water system plans pursuant to chapter 43.20 RCW or coordinated water system plans pursuant to chapter 70.116 RCW and submitted to the department of health and the department of ecology for review and approval as provided for in subsections (5) through (9) of this section. The plan shall state how the proposed intertie will improve overall system reliability, enhance the manageability of the systems, provide opportunities for conjunctive use, or delay or avoid the need to develop new water sources.

(6) The department of health shall be responsible for review and approval of proposals for new interties. In its review the department of health shall determine whether the intertie satisfies the criteria of subsection (4) of this section, with the exception of water rights considerations, which are the responsibility of the department of ecology, and shall determine whether the intertie is necessary to address emergent public health or safety concerns associated with public water supply.

(7) If the intertie is determined by the department of health to be necessary to address emergent public health or safety concerns associated with public water supply, the public water system shall amend its water system plan as required and shall file an application with the department of ecology to change its existing water right to reflect the proposed use of the water as described in the approved water system plan. The department of ecology shall process the application for change pursuant to RCW 90.03.380 or 90.44.100 as appropriate, except that, notwithstanding the requirements of those sections regarding notice and protest periods, applicants shall be required to publish notice one time, and the comment period shall be fifteen days from the date of publication of the notice. Within sixty days of receiving the application, the department of ecology shall issue findings and advise the department of health if existing water rights are determined to be adversely affected. If no determination is provided by the department of ecology within the sixty-day period, the department of health shall proceed as if existing rights are not adversely affected by the proposed intertie. The department of ecology may obtain an extension of the sixty-day period by submitting written notice to the department of health and to the applicant indicating a definite date by which its determination will be made. No additional extensions shall be granted, and in no event shall the total review period for the department of ecology exceed one hundred eighty days.

(8) If the department of health determines the proposed intertie appears to meet the requirements of subsection (4) of this section but is not necessary to address emergent public health or safety concerns associated with public water supply, the department of health shall instruct the applicant to submit to the department of ecology an application for change to the underlying water right or claim as necessary to reflect the new place of use. The department of ecology shall consider the applications pursuant to the provisions of RCW 90.03.380 and 90.44.100 as appropriate. If in its review of proposed interties and associated water rights the department of ecology determines that additional information is required to act on the application, the department may request applicants to provide information necessary for its decision, consistent with agency rules and written guidelines. Parties disagreeing with the decision of the department of ecology on the application for change in place of use may appeal the decision to the pollution control hearings board or directly to a superior court as provided in section 17 of this act.

(9) The department of health may approve plans containing intertie proposals prior to the department of ecology's decision on the water right application for change in place of use. However, notwithstanding such approval, construction work on the intertie shall not begin until the department of ecology issues the appropriate water right document to the applicant consistent with the approved plan.

Sec. 12. RCW 90.14.130 and 1987 c 109 s 13 are each amended to read as follows:

When it appears to the department of ecology that a person entitled to the use of water has not beneficially used his or her water right or some portion thereof, and it appears that ((~~said~~)) the right has or may have reverted to the state because of such nonuse, as provided by RCW 90.14.160, 90.14.170, or 90.14.180, the department of ecology shall notify such person by order: PROVIDED, That where a company, association, district, or the United States has filed a blanket claim under the provisions of RCW 90.14.060 for the total benefits of those served by it, the notice shall be served on such company, association, district or the United States and not upon any of its individual water users who may not have used the water or some portion thereof which they were entitled to use. The order shall contain: (1) A description of the water right, including the approximate location of the point of diversion, the general description of the lands or places where such waters were used, the water source, the amount involved, the purpose of use, and the apparent authority upon which the right is based; (2) a statement that unless sufficient cause be shown on appeal the water right will be declared relinquished; and (3) a statement that such order may be appealed to ((~~the pollution control hearings board~~)) superior court. Any person aggrieved by such an order may appeal it to ((~~the pollution control hearings board pursuant to RCW 43.21B.310~~)) the superior court in a county where the land to which the water right is appurtenant is located. Such an appeal to superior court may be either on the record or de novo at the option of a water right holder to whom the order is directed. The order shall be served by registered or certified mail to the last known address of the person and be posted at the point of division or withdrawal. The order by itself shall not alter the recipient's right to use water, if any.

Sec. 13. RCW 90.14.190 and 1987 c 109 s 14 are each amended to read as follows:

Any person feeling aggrieved by any decision of the department of ecology, other than a water right relinquishment order issued pursuant to RCW 90.14.130, may have the same reviewed by the pollution control hearings board, or may appeal the decision directly to a superior court pursuant to ((~~RCW 43.21B.310~~)) section 17 of this act. In any such review, the findings of fact as set forth in the report of the department of ecology shall be prima facie evidence of the fact of any waiver or relinquishment of a water right or portion thereof. If the hearings board affirms the decision of the department, a party seeks review in superior court of that hearings board decision pursuant to chapter 34.05 RCW, and the court determines that the party was injured by an arbitrary, capricious, or erroneous order of the department, the court may award reasonable attorneys' fees.

Sec. 14. RCW 90.14.200 and 1989 c 175 s 180 are each amended to read as follows:

(1) All matters relating to the implementation and enforcement of this chapter by the department of ecology shall be carried out in accordance with chapter 34.05 RCW, the Administrative Procedure Act, except where the provisions of this chapter expressly conflict with chapter 34.05 RCW. Proceedings held pursuant to RCW 90.14.130 are ((~~adjudicative proceedings within the meaning of chapter 34.05 RCW. Final decisions of the department of ecology in these proceedings~~)) appealable to superior court as provided in RCW 90.14.130. Other final decisions of the department of ecology under this chapter are subject to review by the pollution control hearings board or a superior court in accordance with ((~~chapter 43.21B RCW~~)) section 17 of this act.

(2) RCW 90.14.130 provides nonexclusive procedures for determining a relinquishment of water rights under RCW 90.14.160, 90.14.170, and 90.14.180. RCW 90.14.160, 90.14.170, and 90.14.180 may be applied in, among other proceedings, general adjudication proceedings initiated under RCW 90.03.110 or 90.44.220: PROVIDED, That nothing herein shall apply to litigation involving determinations of the department of ecology under RCW 90.03.290 relating to the impairment of existing rights.

Sec. 15. RCW 90.58.180 and 1995 c 347 s 310 are each amended to read as follows:

(1) Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a petition for review within twenty-one days of the date of filing as defined in RCW 90.58.140(6).

Within seven days of the filing of any petition for review with the board as provided in this section pertaining to a final decision of a local government, the petitioner shall serve copies of the petition on the department and the office of the attorney general. The department and the attorney general may intervene to protect the public interest and insure that the provisions of this chapter are complied with at any time within fifteen days from the date of the receipt by the department or the attorney general of a copy of the petition for review filed pursuant to this section. ((The shorelines hearings board shall schedule review proceedings on the petition for review without regard as to whether the period for the department or the attorney general to intervene has or has not expired.))

(2) The department or the attorney general may obtain review of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition with the shorelines hearings board and the appropriate local government within twenty-one days from the date the final decision was filed as provided in RCW 90.58.140(6).

(3) The review proceedings authorized in subsections (1) and (2) of this section are subject to the provisions of chapter 34.05 RCW pertaining to procedures in adjudicative proceedings. Judicial review of such proceedings of the shorelines hearings board is governed by chapter 34.05 RCW, except that judicial review of a decision by the board may be either on the record or de novo at the option of the party or parties applying for the permit being reviewed, and except that the burden of proving the validity of the decision rests upon the department or local government whose decision is under review. The board shall issue its decision on the appeal authorized under subsections (1) and (2) of this section within one hundred eighty days after the date the petition is filed with the board or a petition to intervene is filed by the department or the attorney general, whichever is later. The time period may be extended by the board for a period of thirty days upon a showing of good cause or may be waived by the parties.

(4) Any person may appeal any rules, regulations, or guidelines adopted or approved by the department within thirty days of the date of the adoption or approval. The board shall make a final decision within sixty days following the hearing held thereon.

(5) The board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect unless it determines that the rule, regulation, or guideline:

(a) Is clearly erroneous in light of the policy of this chapter; or

(b) Constitutes an implementation of this chapter in violation of constitutional or statutory provisions; or

(d) Was developed without fully considering and evaluating all material submitted to the department during public review and comment; or

(e) Was not adopted in accordance with required procedures.

(6) If the board makes a determination under subsection (5) (a) through (e) of this section, it shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government and any other interested party, a new rule, regulation, or guideline consistent with the board's decision.

(7) A decision of the board on the validity of a rule, regulation, or guideline shall be subject to review in superior court, if authorized pursuant to chapter 34.05 RCW. A petition for review of the decision of the shorelines hearings board on a rule, regulation, or guideline shall be filed within thirty days after the date of final decision by the shorelines hearings board.

Sec. 16. 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.

NEW SECTION. Sec. 17. A new section is added to chapter 43.21B RCW to read as follows:

(1) For purposes of chapter . . ., Laws of 1997 (this act), a "water quantity decision" includes the following actions by the department of ecology:

(a) 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;

(b) 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;

(c) A decision to establish or modify a minimum flow or level for water under chapter 90.03, 90.22, or 90.54 RCW, or to reserve water for such a minimum flow or level; and

(d) A decision to establish a water management plan under chapter 90.03, 90.44, or 90.54 RCW.

(2) A person who is aggrieved or adversely affected by a water quantity decision may appeal the decision either to the pollution control hearings board pursuant to RCW 43.21B.310 or directly to a superior court. Any such appeal to superior court may be either on the record or de novo at the option of an appealing party. An appeal of a decision regarding a water withdrawal must be filed in the county where the point of withdrawal is located. An appeal of a decision regarding an instream flow or a water management plan must be filed in the county with the greatest amount of territory governed by the flow or plan.

(3) An appeal to the hearings board of a water quantity decision must contain, in addition to the information listed in RCW 43.21B.310(1)(c), a notice of exercise or waiver of the right to require mediation. Upon receipt of an appeal petition indicating an election to attempt mediation, the hearings board shall suspend further action on the appeal and order a stay of the appealed decision. The hearings board shall promptly schedule and, after at least seven days' notice, conduct an initial conference for the purpose of agreeing upon the selection of a mediator who is either trained in dispute resolution techniques or experienced in successfully resolving disputes. If the parties are unable to agree on a mediator, each party shall nominate a mediator and the mediator is selected by lot from among the nominees. An administrative appeals judge or other employee of the hearings board may serve as a mediator, but may not participate in hearing or in writing the decision or order in that appeal. Evidence of conduct or statements made during the course of mediation must be treated by the mediator and the parties in a confidential manner and are not admissible in subsequent proceedings in the appeal. All other proceedings pertaining to the appeal must be stayed until conclusion of the mediation effort but no later than one hundred eighty days after the appeal is filed. However, the hearings board is not prevented from entertaining motions filed by the parties while mediation is ongoing and discovery may be conducted while mediation is ongoing if agreed to by all parties.

(4) The mediation process terminates when the mediation effort is concluded, but no later than one hundred eighty days after the date on which the appeal is filed. When notified by the mediator of an agreement by all parties to conclude the mediation effort, the hearings board shall take such further action on the appeal as the parties agreed upon, which may include entry of an order embodying the agreement and dismissing the appeal, remand of the matter to the department for reconsideration of the decision being appealed, or resumption of its consideration of the appeal. When notified by the mediator that the parties appear to be unable to conclude the mediation effort by agreement, the hearings board, after giving notice to the parties, shall conclude the mediation process and resume consideration of the appeal. At any time during the mediation process, the hearings board shall enter an order dismissing the appeal when requested to do so by a party. A water quantity decision which has been appealed to the hearings board and dismissed by it to conclude a mediation effort may be appealed directly to superior court, as provided in subsection (1) of this section, within thirty days after entry of the order of dismissal.