AN
ACT Relating to water rights claims; amending RCW 90.14.041 and 90.14.071; and
adding new sections to chapter 90.14 RCW.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 90.14 RCW to read as follows:
(1)
A new period for filing statements of claim for water rights is established.
The filing period shall begin September 1, 1997, and shall end at midnight June
30, 1998. Each person or entity claiming under state law a right to withdraw
or divert and beneficially use surface water under a right that was established
before the effective date of water code established by chapter 117, Laws of
1917, and any person claiming under state law a right to withdraw and
beneficially use ground water under a right that was established before the
effective date of the ground water code established by chapter 263, Laws of
1945, shall register the claim with the department during the filing period
unless the claim has been filed in the state water rights claims registry
before the effective date of this section. A person who claims such a right and
fails to register the claim as required is conclusively deemed to have waived
and relinquished any right, title, or interest in the right. A statement filed
during this filing period shall be filed as provided in RCW 90.14.051 and
90.14.061 and shall be subject to the provisions of this chapter regarding
statements of claim. This reopening of the period for filing statements of
claim shall not affect or impair in any respect whatsoever any water right
existing prior to the effective date of this section. A water right embodied
in a statement of claim filed under this section is subordinate to any water
right embodied in a permit or certificate issued under chapter 90.03 or 90.44
RCW prior to the date the statement of claim is filed with the department and
is subordinate to any water right embodied in a statement of claim filed in the
water rights claims registry before the effective date of this section.
(2)
The department of ecology shall, at least once each week during the month of
August 1997 and at least once each month during the filing period, publish a
notice regarding this new filing period in newspapers of general circulation in
the various regions of the state. The notice shall contain the substance of
the following notice:
WATER
RIGHTS NOTICE
Each person or entity claiming a right to withdraw or
divert and beneficially use surface water under a right that was established
before June 7, 1917, or claiming a right to withdraw and beneficially use
ground water under a right that was established before June 7, 1945, under the
laws of the state of Washington must register the claim with the department of
ecology, Olympia, Washington. The claim must be registered on or after
September 1, 1997, and not later than five o'clock on June 30, 1998.
FAILURE TO REGISTER THE CLAIM WILL RESULT IN A WAIVER
AND RELINQUISHMENT OF THE WATER RIGHT OR CLAIMED WATER RIGHT
Registering
a claim is NOT required for:
1. A water right that is based on the authority of a
permit or certificate issued by the department of ecology or one of its
predecessors;
2. A water right that is based on the exemption from
permitting requirements provided by RCW 90.44.050 for certain very limited uses
of ground water; or
3. A water right that is based on a statement of claim
that has previously been filed in the state's water rights claims registry
during other registration periods.
For further information, for a copy of the law establishing
this filing period, and for an explanation of the law and its requirements,
contact the department of ecology, Olympia, Washington.
The
department shall also prepare, make available to the public, and distribute to
the communications media information describing the types of rights for which
statements of claim need not be filed, the effect of filing, the effect of RCW
90.14.071, and other information relevant to filings and statements of claim.
(3) The
department of ecology shall ensure that employees of the department are readily
available to respond to inquiries regarding filing statements of claim and that
all of the information the department has at its disposal that is relevant to
an inquiry regarding a particular potential claim, including information
regarding other rights and claims in the vicinity of the potentially claimed
right, is available to the person making the inquiry. The department shall
dedicate additional staff in each of the department's regional offices and in
the department's central office to ensure that responses and information are
provided in a timely manner during each of the business days during the month
of August 1997 and during the new filing period.
(4) To
assist the department in avoiding unnecessary duplication, the department shall
provide to a requestor, within ten working days of receiving the request, the
records of any water right claimed, listed, recorded, or otherwise existing in
the records of the department or its predecessor agencies, including any report
of a referee in a water rights adjudication. This information shall be
provided as required by this subsection if the request is provided in writing
from the owner of the water right or from the holder of a possessory interest
in any real property for water right records associated with the property or if
the requestor is an attorney for such an owner. The information regarding
water rights in the area served by a regional office of the department shall
also be provided within ten working days to any requestor who requests to
review the information in person in the department's regional office. The
information held by the headquarters office of the department shall also be
provided within ten working days to any requestor who requests to review the information
in person in the department's headquarters office. The requirements of this
subsection that records and information be provided to requestors within ten
working days may not be construed as limiting in any manner the obligations of
the department to provide public access to public records as required by
chapter 42.17 RCW.
(5)
This section does not apply to claims for the use of ground water withdrawn in
an area that is, during the period established by subsection (2) of this
section, the subject of a general adjudication proceeding for water rights in
superior court under RCW 90.03.110 through 90.03.245 and the proceeding applies
to ground water rights. This section does not apply to claims for the use of
surface water withdrawn in an area that is, during the period established by
subsection (2) of this section, the subject of a general adjudication
proceeding for water rights in superior court under RCW 90.03.110 through
90.03.245 and the proceeding applies to surface water rights.
(6)
This section does not apply to claims for the use of water in a ground water
area or subarea for which a management program adopted by the department by
rule and in effect on the effective date of this section establishes acreage
expansion limitations for the use of ground water.
Sec.
2. RCW
90.14.041 and 1988 c 127 s 73 are each amended to read as follows:
All
persons using or claiming the right to withdraw or divert and make beneficial
use of public surface or ground waters of the state, except as ((hereinafter))
provided in this section, RCW 90.14.043, and section 1 of this act,
shall file with the department of ecology not later than June 30, 1974, a
statement of claim for each water right asserted on a form provided by the
department. Neither this section ((shall not)) nor section 1
of this act apply to any water rights which are based on the authority of a
permit or certificate issued by the department of ecology or one of its
predecessors. Further, section 1 of this act does not apply to the
beneficial uses of water which are the subject of statements of claim in the
water rights claims registry prior to September 1, 1997, or which are exempted
from permit and application requirements by RCW 90.44.050 and neither this
section nor section 1 of this act requires that statements of claims for such
uses be filed during the filing period established by section 1 of this act.
Sec.
3. RCW
90.14.071 and 1969 ex.s. c 284 s 16 are each amended to read as follows:
Except
as provided in section 5 of this act or as exempted from filing by RCW
90.14.041, any person claiming the right to divert or withdraw waters of
the state as set forth in RCW 90.14.041, who fails to file a statement of claim
as provided in RCW 90.14.041, 90.14.043, or section 1 of this act and in RCW
90.14.051 and 90.14.061, shall be conclusively deemed to have waived and
relinquished any right, title, or interest in said right.
*NEW
SECTION. Sec. 4.
A new section is added to chapter 90.14 RCW to read as follows:
Any
person or entity, or successor to such person or entity, having a statement of
claim on file with the water rights claims registry on the effective date of
this section, may submit to the department of ecology for filing an amendment
to such a statement of claim as provided in this section. Such an amendment
may be submitted only to correct an error in the statement filed and the person
submitting the amendment shall attest in writing that the amendment does not
constitute an expansion of the right for which the statement of claim was
intended. Such an amendment may be submitted only during the period
established in section 1 of this act for filing statements of claim.
The
department shall accept any such submission and file the amendment in the
registry unless the department by written determination concludes that the
requirements of this section have not been satisfied. Any person aggrieved by
a determination of the department may obtain a review thereof by filing a
petition for review with the pollution control hearings board within thirty
days of the date of the determination by the department. The provisions of RCW
90.14.081 shall apply to any amendment filed under this section. This section
shall not be construed as limiting the authority of a person or entity to
submit an amendment under RCW 90.14.065.
*Sec. 4 was vetoed. See message at end of chapter.
*NEW
SECTION. Sec. 5.
A new section is added to chapter 90.14 RCW to read as follows:
During
the period beginning March 1, 1994, and ending at midnight June 30, 1998,
neither the department of ecology nor the pollution control hearings board may
determine or find that a water right has been waived or relinquished under this
chapter based on the failure of any person or entity to file a statement of
claim for the right under this chapter. Any finding or determination issued
contrary to this section is void. If the department or the board determined that
a person waived or relinquished a water right during the time period specified
in this section, but prior to the effective date of this section, the sole
remedy for the person shall be to file a new claim or submit an amendment under
section 1 or 4 of this act or RCW 90.14.065.
*Sec. 5 was vetoed. See message at end of chapter.
Note:
Governor's explanation of partial veto is as follows:
"I
am returning herewith, without my approval as to sections 4 and 5, Substitute
House Bill No. 1118 entitled:
"AN ACT Relating to water right claims;"
I have approved most
sections of Substitute House Bill No. 1118. It is my hope that this
legislation will clear up the murky past of water rights claims and put an end
to the confusion over who needed to file claims in the Water Rights Claims
Registry.
I have vetoed section 4
for two reasons. The first reason is that an existing statute (RCW 90.14.065)
provides a mechanism to amend an existing claim filed with the Water Rights
Claim Registry. The second reason is that the burden of proof for such
amendments would be placed on the Department Ecology instead of the claimant.
I have vetoed section 5
because the exemption from relinquishment is retroactive to March 1, 1994. It
is reasonable to provide protection from relinquishment for those filing new
claims. However, the retroactive provision is problematic because it would
conflict with one or more Superior Court decisions related to the
relinquishment of water rights due to the failure to file a claim.
For these reasons, I have
vetoed sections 4 and 5 of Substitute House Bill No. 1118.
With
exception of sections 4 and 5, Substitute House Bill No. 1118 is
approved."
