[atlas:bill]

AN ACT Relating to dams licensed or owned by the federal government; and adding a new chapter to Title 90 RCW.

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

NEW SECTION. Sec. 1. (1) The legislature finds that:

(a) The United States supreme court has determined that the states are responsible for enforcing water quality standards within their various jurisdictions;

(b) The United States supreme court has also recognized that, in addition to these primary enforcement responsibilities, the federal clean water act requires states to provide water quality certification before federal licenses or permits can be issued for activities that may result in any discharge into the waters of the states;

(c) In addition to these responsibilities and powers, this state has a sovereign responsibility to protect its citizens and resources against any action, even one motivated by natural resource objectives, that would sacrifice one vital resource for another;

(d) Some have proposed that the reservoirs of dams on the main stems of the Columbia and Snake river system in this state be lowered below their operational levels or the dams be breached as a means of enhancing stocks of anadromous fish; and

(e) The environmental effects of any action of such a magnitude must be carefully examined to ensure that the action will: (i) Serve its objectives in a manner that is superior to other alternatives, and (ii) serve those objectives without sacrificing water quality including, but not limited to, that needed for fish habitat.

(2) The purpose of this chapter is to ensure that no action is taken to breach, remove, or circumvent a federally owned or federally licensed dam, or to reduce the reservoir of a federally owned or a federally licensed dam below the operating level of the dam without the effects of the action on water quality being carefully examined and water quality being protected. It is also the purpose of this chapter to ensure that property rights, including property rights to the use of water and contractual rights, are protected and to ensure that, as environmental analyses are being undertaken, the economic effects of a proposal regarding federally owned or licensed dams are fully disclosed.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Federally owned dam" means a dam owned by the United States or by an agency of the United States on the effective date of this act.

(2) "Federally licensed dam" means a dam licensed for hydroelectric power generation by the United States or by an agency of the United States on the effective date of this act.

(3) "Department" means the department of ecology.

NEW SECTION. Sec. 3. (1) No action may be taken by any entity whatsoever to breach, remove, or circumvent a federally owned or federally licensed dam, or to reduce the reservoir of a federally owned or a federally licensed dam below the operating level of the dam unless each of the following conditions has been satisfied:

(a) The department has issued a discharge permit under chapter 90.48 RCW for the action, or the state, through the department, has granted certification regarding water quality under 33 U.S.C. Sec. 1341 for the action and the issuance of the permit or granting of the certification are in compliance with section 4 of this act;

(b) A final version of a detailed statement under RCW 43.21C.030(2)(c), generally known as a final environmental impact statement, has been prepared and issued by the department regarding the issuance of a permit or granting of certification under (a) of this subsection. In comparing in the statement the environmental impacts of the proposed action to alternative actions that would accomplish the same or similar objective of the action, the department shall ensure that it includes an analysis of the environmental impacts of generating electrical power to replace any hydroelectric generation reduced or lost under the proposal. The department shall also prepare and append to the draft and final versions of the statement an analysis of the economic costs of the proposal and compare these costs to the economic costs of the alternatives identified in the statement;

(c) The department determines through the procedures described in section 5 of this act that the action will not be detrimental to or impair existing water rights; and

(d) A comprehensive water resources program has been developed and adopted by the department under chapter 90.54 RCW that identifies how unallocated water resources will be managed in the portion of the river basin in which the dam and the reservoir for the dam are located.

(2) An action in subsection (1) of this section may not be taken with regard to a federally licensed dam unless, in addition to the conditions listed in subsection (1)(a) through (d) of this section, the state's attorney general certifies that the action will not directly preclude the entity operating or owning the dam from fulfilling its obligations in any contract held by or impliedly held by holders of bonds issued by the entity.

NEW SECTION. Sec. 4. The department shall issue a permit or grant a certification under section 3(1)(a) of this act only if the action that is the subject of the permit or certification will not cause water quality standards to be violated in the reservoir of the dam, at the dam, or in any segments of water bodies downstream from the dam. Such water quality standards include, but are not limited to, the antidegradation policies that apply to such standards. Although not a limitation on the standards that shall be examined under this section, the department shall take care to examine the effects of the action on any habitat that constitutes a use of these water bodies under the state's water quality standards. Because of the magnitude of such an action, a temporary water quality modification permit may not be issued for the action.

NEW SECTION. Sec. 5. (1) In determining whether such an action will be detrimental to, or impair existing water rights, the department shall review the rights documented in certificates, permits, and claims in the records held by the department and shall prepare a draft written report on the effects of the action on existing water rights. The department shall make the draft report and a draft of its determination readily available to the public without charge. Not sooner than thirty days after the draft report has been made readily available to the public, the department shall convene a public meeting of water right holders and take public testimony from water right holders on the contents of the draft report and on the draft determination. The department shall provide public notice of the meeting and shall send written notice of the meeting by mail to holders of water rights or water claims who collectively hold, based on the department's records, rights or claims to not less than sixty percent of the water withdrawn: (a) From the reservoir of the dam; (b) from the river impounded by the dam within ten miles downstream of the dam; and (c) from wells in areas the department has determined, for the purposes of processing applications for new water rights, to be in hydraulic continuity with the waters in the reservoir or with the waters in such a ten-mile downstream reach of the river. The department shall also provide written notice of the meeting to each federally recognized Indian tribe with tribal treaty rights to such waters or to activities or resources directly affected by such waters. As part of its final written report and determination, the department shall generally summarize and respond to the testimony provided at that meeting. Copies of the department's final report and determination shall be made readily available to the public without charge and shall be submitted to the appropriate committees of the state legislature.

(2) The public notice required under this section shall include publication of notice in a newspaper of general circulation in the area of the dam once a week for two consecutive weeks before the meeting.

NEW SECTION. Sec. 6. Sections 1 through 5 of this act constitute a new chapter in Title 90 RCW.