BILL REQ. #:  Z-1176.2 

Read first time 01/29/2004.   Referred to Committee on Natural Resources, Energy & Water.

     AN ACT Relating to the establishment of a water court; amending RCW 2.08.010, 43.03.012, 90.03.110, 90.03.120, 90.03.160, 90.03.180, 90.03.190, 90.03.210, 90.03.230, 34.05.514, 34.05.518, 34.05.570, 34.05.578, and 34.05.588; reenacting and amending RCW 34.05.526; adding a new chapter to Title 2 RCW; creating new sections; and providing a contingent effective date.

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

NEW SECTION.  Sec. 1   The legislature finds that legal proceedings relating to water rights and instream flows impose a growing demand on the superior courts of the state. The legislature further finds that the technical complexity and specialized legal issues raised by many water right disputes would be better managed by a water court with specialized expertise. Therefore, it is the intent of the legislature to establish a water court within the state court system that will have exclusive original jurisdiction for challenges relating to the adoption of instream flows and that will have appellate jurisdiction for water rights management and enforcement disputes. Further, it is the intent of the legislature to provide the water court with exclusive original jurisdiction for future general water rights adjudications, if any. It is not the intent of the legislature, by vesting the water court with exclusive original jurisdiction for future general water rights adjudications, to direct the state to file, or not, any such adjudications.

Sec. 2   RCW 2.08.010 and 1955 c 38 s 3 are each amended to read as follows:
     Except as provided in this act, the superior court shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to three hundred dollars, and in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law; of actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate a nuisance; of all matters of probate, of divorce and for annulment of marriage, and for such special cases and proceedings as are not otherwise provided for; and shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court, and shall have the power of naturalization and to issue papers therefor. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, certiorari, prohibition and writs of habeas corpus on petition by or on behalf of any person in actual custody in their respective counties. Injunctions and writs of prohibition and of habeas corpus may be issued on legal holidays and nonjudicial days.

NEW SECTION.  Sec. 3   The water court is a court of record, and shall be always open, except on nonjudicial days.

NEW SECTION.  Sec. 4   The water court shall have exclusive original jurisdiction in all appeals of rules adopted by the department of ecology relating to instream flows and in any future general adjudications of water rights filed after the effective date of this section.

NEW SECTION.  Sec. 5   The water court shall have appellate jurisdiction in cases affecting water rights arising from review by the pollution control hearings board.

NEW SECTION.  Sec. 6   (1) There shall be three divisions of the water court, one in each of the three court of appeals divisions within the state. The water court shall be located in the city having the largest population within each of the three divisions unless approved otherwise by the chief justice of the supreme court. Each division shall have a minimum of one judge. Additional judges may be added, including an at-large judge under section 8 of this act. The water court may hold hearings in any suitable location taking into account the convenience of the hearing's participants and the public.
     (2) A central court administrator for the water court shall be appointed by the administrator for the courts and shall operate within the office of the administrator for the courts.
     (3) The water court may employ pro tem judges, court commissioners, referees, and other court staff in the same manner as the superior courts as provided in this title.

NEW SECTION.  Sec. 7   (1) One water court judge shall initially be appointed by the governor for each water court division. The governor shall determine which water court judge positions shall initially be appointed for two years, four years, and six years. Except as provided for the initial appointments made by the governor during the initial establishment of the water court, water court judges shall be appointed to terms of six years and shall serve until a successor is elected and qualified or appointed. The supreme court shall nominate a minimum of three qualified persons for each water court judgeship for the governor's consideration and the governor shall make the appointment from the slate of those persons so nominated. Persons who have practiced law for a minimum of five years and have resided within the water court division for a minimum of one year are eligible to be appointed. The governor shall, in making appointments and filling vacancies created in the water courts, take into consideration such factors as: Personal character; intellect; ability; diversity of background of experience in the practice of the law; diversity of political philosophy; diversity of educational experience; and diversity of affiliation with social and economic groups, for the purpose of maintaining a balanced water court with the highest quality of personnel. It is desirable, though not required, that appointees have experience in and knowledge of state water law and have experience working in a judicial or quasi-judicial body.
     (2) A competitive election shall be held for each appointed judge position in the general election immediately preceding the expiration of the initial appointed term if the person appointed by the governor informs the secretary of state of his or her intention to stand for election to a second term. The election shall be held in the same manner as the election of superior court judges except that those eligible to vote are all registered voters within the water court division in which the judge would serve. If the appointee informs the secretary of state of an intention to not stand for election, no general election shall be held and the governor shall appoint a new judge in the same manner as provided in subsection (1) of this section.
     (3) A water court judge who has been appointed and reelected in a competitive election must thereafter stand for a retention election held in the general election preceding the expiration of each six-year term if the judge informs the secretary of state of his or her intention to stand for reelection. The electorate consists of the eligible voters within the water court division in which the judge serves. The judge will be retained for another six-year term if fifty percent or more of the persons casting a ballot in the retention election vote in favor of retention. If the judge decides to not stand for the retention election, no general election shall be held and the governor shall appoint a new judge in the same manner as provided in subsection (1) of this section. If the voters vote to not retain the judge, the governor shall appoint a new judge in the same manner as provided in subsection (1) of this section.
     (4) A vacant judicial position on a water court shall be filled by appointment by the governor for the remainder of the term or for a six-year term in the case of a vacancy occurring at the conclusion of a judge's full term. The appointment shall be made in the manner provided by subsection (1) of this section. The person appointed to fill a vacant position must stand for a competitive election at the conclusion of the term of the position he or she is filling and subsequent retention elections as provided in this section.

NEW SECTION.  Sec. 8   An at-large water court judge may be appointed by the governor upon the recommendation of the water court judges and the central court administrator. The at-large judge may be assigned cases within any of the three divisions in which the workload exceeds the capacity of the water court. An at-large water court judge shall be appointed in the same manner as for a judge serving in one of the divisions and shall stand for a statewide open election prior to the conclusion of the initial six-year term and for retention elections every six years thereafter for as long as the judge wishes to continue in the position. Vacancies of the at-large judge position shall be filled in the same manner as provided in section 7(1) of this act.

NEW SECTION.  Sec. 9   Every water court judge shall, before entering upon the duties of his or her office, take and subscribe an oath that he or she will support the Constitution of the United States and the Constitution of the state of Washington, and will faithfully and impartially discharge the duties of judge to the best of his or her ability, which oath shall be filed in the office of the secretary of state. Such an oath or affirmation to be in form substantially the same as prescribed for justices of the supreme court.

NEW SECTION.  Sec. 10   The water court judges shall select a presiding judge and an assistant presiding judge as provided in Washington courts general rule 29. In addition to having responsibilities designated by rule, the presiding judge is responsible for assigning each new water case filed with the court. The presiding judge shall consider the geographic origin of each case and the workload of each judge when making assignment decisions in order to equitably distribute the workload of the court. The presiding judge shall to the extent practicable balance the workload of the judges by assigning cases to the division in which each case arises or by assigning cases to the at-large judge, if one is established.

Sec. 11   RCW 43.03.012 and 2003 1st sp.s. c 1 s 2 are each amended to read as follows:
     Pursuant to Article XXVIII, section 1 of the state Constitution and RCW 2.04.092, 2.06.062, 2.08.092, 3.58.010, and 43.03.310, the annual salaries of the judges of the state shall be as follows:
     (1) Effective September 1, 2002:
     (a) Justices of the supreme court . . . . . . . . . . . . $ 134,584
     (b) Judges of the court of appeals . . . . . . . . . . . . $ 128,116
     (c) Judges of the superior court . . . . . . . . . . . . $ 121,972
     (d) Full-time judges of the district court . . . . . . . . . . . . $ 116,135
     (2) Effective September 1, 2003:
     (a) Justices of the supreme court . . . . . . . . . . . . $ 134,584
     (b) Judges of the court of appeals . . . . . . . . . . . . $ 128,116
     (c) Judges of the superior court . . . . . . . . . . . . $ 121,972
     (d) Full-time judges of the district court . . . . . . . . . . . . $ 116,135
     (3) Effective September 1, 2004:
     (a) Justices of the supreme court . . . . . . . . . . . . $ 137,276
     (b) Judges of the court of appeals . . . . . . . . . . . . $ 130,678
     (c) Judges of the superior court and water court . . . . . . . . . . . . $ 124,411
     (d) Full-time judges of the district court . . . . . . . . . . . . $ 118,458
     (4) The salary for a part-time district court judge shall be the proportion of full-time work for which the position is authorized, multiplied by the salary for a full-time district court judge.

NEW SECTION.  Sec. 12   Water court judges are subject to the same mandatory retirement age as superior court judges as provided by Article IV, section 3(a) of the state Constitution and are eligible for benefits under the judicial retirement system as provided in chapters 2.10, 2.12, and 2.14 RCW.

NEW SECTION.  Sec. 13   Unless otherwise provided by statute, all process issuing out of the water court shall be directed to the sheriff of the county in which it is to be served, and be executed by the sheriff according to law. The process of the water courts shall extend to all parts of the state.

NEW SECTION.  Sec. 14   Adjournments from day to day, or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court from sitting at any time.

NEW SECTION.  Sec. 15   The water court judges shall, from time to time, establish uniform rules for the government of the water court.

NEW SECTION.  Sec. 16   Water court judges shall, on or before the first day of November in each year, report in writing to the judges of the supreme court, such defects and omissions in the laws as their experience may suggest.

NEW SECTION.  Sec. 17   Whenever the presiding judge of the water court requests the governor of the state to direct a judge of the superior court to hold a session of the water court, the governor shall request and direct a judge of the superior court, making such selection as the governor deems to be most consistent with the state of judicial business, to hold a session of the water court. The direction by the governor shall be made in writing, and shall specify the water court division in which the governor directs the superior court judge to hold the session of the water court, and the period during which the superior court judge is to hold the session. Thereupon, it shall be the duty of the superior court judge so requested, and the superior court judge is hereby empowered to hold a session of the water court as specified by the governor.

Sec. 18   RCW 90.03.110 and 1987 c 109 s 72 are each amended to read as follows:
     Upon the filing of a petition with the department by one or more persons claiming the right to divert any waters within the state or when, after investigation, in the judgment of the department, the interest of the public will be subserved by a determination of the rights thereto, it shall be the duty of the department to prepare a statement of the facts, together with a plan or map of the locality under investigation, and file such statement and plan or map in the ((superior)) water court ((of the county in which said water is situated, or, in case such water flows or is situated in more than one county, in the county which the department shall determine to be the most convenient to the parties interested therein)). Such statement shall contain substantially the following matter, to wit:
     (1) The names of all known persons claiming the right to divert said water, the right to the diversion of which is sought to be determined, and
     (2) A brief statement of the facts in relation to such water, and the necessity for a determination of the rights thereto.

Sec. 19   RCW 90.03.120 and 1987 c 109 s 73 are each amended to read as follows:
     Upon the filing of the statement and map as provided in RCW 90.03.110 the judge of such ((superior)) water court shall make an order directing summons to be issued, and fixing the return day thereof, which shall be not less than sixty nor more than ninety days, after the making of such order: PROVIDED, That for good cause, the court, at the request of the department, may modify said time period. A summons shall thereupon be issued out of said ((superior)) water court, signed and attested by the clerk thereof, in the name of the state of Washington, as plaintiff, against all known persons claiming the right to divert the water involved and also all persons unknown claiming the right to divert the water involved, which said summons shall contain a brief statement of the objects and purpose of the proceedings and shall require the defendants to appear on the return day thereof, and make and file a statement of claim to, or interest in, the water involved and a statement that unless they appear at the time and place fixed and assert such right, judgment will be entered determining their rights according to the evidence: PROVIDED, HOWEVER, That any persons claiming the right to the use of water by virtue of a contract with claimant to the right to divert the same, shall not be necessary parties to the proceeding.

Sec. 20   RCW 90.03.160 and 1989 c 80 s 1 are each amended to read as follows:
     Upon the completion of the service of summons as hereinbefore provided, the ((superior)) water court in which said proceeding is pending shall make an order referring said proceeding to the department to take testimony by its duly authorized designee, as referee, and the designee shall report to and file with the ((superior)) water court of the county in which such cause is pending a transcript of such testimony for adjudication thereon by such court. The ((superior)) water court may, in any complex case with more than one thousand named defendants, including the United States, retain for hearing and further processing such portions of the proceeding as pertain to a discrete class or classes of defendants or claims of water rights if the court determines that: (1) Resolution of claims of such classes appear to involve significant issues of law, either procedural or substantive; and (2) such a retention will both expedite the conclusion of the case and reduce the overall expenditures of the plaintiff, defendants, and the court.

Sec. 21   RCW 90.03.180 and 1995 c 292 s 21 are each amended to read as follows:
     At the time of filing the statement as provided in RCW 90.03.140, each defendant shall pay to the clerk of the ((superior)) water court a fee as set under RCW 36.18.020.

Sec. 22   RCW 90.03.190 and 1987 c 109 s 78 are each amended to read as follows:
     Upon the completion of the taking of testimony it shall be the duty of the department's designee to prepare and file with the clerk of the ((superior)) water court ((where such proceeding is pending,)) a transcript of the testimony taken at such hearing, in triplicate, together with all papers and exhibits offered and received in evidence and not already a part of the record. ((He)) The designee shall also make and file in said court a full and complete report ((as in other cases of reference in the superior court)). Two of said transcripts shall be for the use of the parties as the court may direct. The court shall set a time for the hearing and the designee shall thereupon prepare a notice designating a time for the hearing of said report and serve a copy thereof, together with a copy of ((his)) the designee's report, on all persons, their agents or attorneys who have appeared in such proceeding. Such service shall be made not less than twenty days before the time for said hearing, either personally or by registered mail, and an affidavit of such service filed with the clerk.

Sec. 23   RCW 90.03.210 and 2001 c 220 s 5 are each amended to read as follows:
     (1) During the pendency of such adjudication proceedings prior to judgment or upon review by an appellate court, the stream or other water involved shall be regulated or partially regulated according to the schedule of rights specified in the department's report upon an order of the water court authorizing such regulation: PROVIDED, Any interested party may file a bond and obtain an order staying the regulation of said stream as to him or her, in which case the water court shall make such order regarding the regulation of the stream or other water as he or she may deem just. The bond shall be filed within five days following the service of notice of appeal in an amount to be fixed by the water court and with sureties satisfactory to the court, conditioned to perform the judgment of the water court.
     (2) Any appeal of a decision of the department on an application to change or transfer a water right subject to a general adjudication that is being litigated actively and was commenced before October 13, 1977, shall be conducted as follows:
     (a) The appeal shall be filed with the water court conducting the adjudication and served under RCW 34.05.542(3). The content of the notice of appeal shall conform to RCW 34.05.546. Standing to appeal shall be based on the requirements of RCW 34.05.530 and is not limited to parties to the adjudication.
     (b) If the appeal includes a challenge to the portion of the department's decision that pertains to tentative determinations of the validity and extent of the water right, review of those tentative determinations shall be conducted by the water court consistent with the provisions of RCW 34.05.510 through 34.05.598, except that the review shall be de novo.
     (c) If the appeal includes a challenge to any portion of the department's decision other than the tentative determinations of the validity and extent of the right, the water court must certify to the pollution control hearings board for review and decision those portions of the department's decision. Review by the pollution control hearings board shall be conducted consistent with chapter 43.21B RCW and the board's implementing regulations, except that the requirements for filing, service, and content of the notice of appeal shall be governed by (a) of this subsection.
     (d) Appeals shall be scheduled to afford all parties full opportunity to participate before the ((superior)) water court and the pollution control hearings board.
     (e) Any person wishing to appeal the decision of the board made under (c) of this subsection shall seek review of the decision in accordance with chapter 34.05 RCW, except that the petition for review must be filed with the ((superior)) water court conducting the adjudication.
     (3) Nothing in this section shall be construed to affect or modify any treaty or other federal rights of an Indian tribe, or the rights of any federal agency or other person or entity arising under federal law. Nothing in this section is intended or shall be construed as affecting or modifying any existing right of a federally recognized Indian tribe to protect from impairment its federally reserved water rights in federal court.

Sec. 24   RCW 90.03.230 and 1987 c 109 s 81 are each amended to read as follows:
     The clerk of the ((superior)) water court, immediately upon the entry of any decree by the ((superior)) water court, shall transmit a certified copy thereof to the director, who shall immediately enter the same upon the records of the department.

Sec. 25   RCW 34.05.514 and 2001 c 220 s 3 are each amended to read as follows:
     (1) Except as provided in subsections (2) ((and (3))) through (5) 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 conducted by the pollution control hearings board pursuant to chapter 43.21B RCW or as otherwise provided in RCW 90.03.210(2) involving decisions of the department of ecology on applications for changes or transfers of water rights that are the subject of a general adjudication of water rights that is being litigated actively under chapter 90.03 or 90.44 RCW, the petition must be filed with the ((superior)) water court conducting the adjudication, to be consolidated by the court with the general adjudication. A party to the adjudication shall be a party to the appeal under this chapter only if the party files or is served with a petition for review to the extent required by this chapter.
     (4) For proceedings involving the review of a water rights management or enforcement decision of the pollution control hearings board, the petition shall be filed in the water court.
     (5) For proceedings involving the review of a rule adopted by the department of ecology that establishes instream flows, the petition shall be filed in the water court.

Sec. 26   RCW 34.05.526 and 1988 c 288 s 505 and 1988 c 202 s 35 are each reenacted and amended to read as follows:
     An aggrieved party may secure appellate review of any final judgment of the superior court or the water court under this chapter by the supreme court or the court of appeals. The review shall be secured in the manner provided by law for review of superior court decisions in other civil cases.

Sec. 27   RCW 34.05.518 and 2003 c 393 s 16 are each amended to read as follows:
     (1) The final decision of an administrative agency in an adjudicative proceeding under this chapter may, except as otherwise provided in chapter 43.21L RCW, be directly reviewed by the court of appeals either (a) upon certification by the superior court or water court pursuant to this section or (b) if the final decision is from an environmental board as defined in subsection (3) of this section, upon acceptance by the court of appeals after a certificate of appealability has been filed by the environmental board that rendered the final decision.
     (2) For direct review upon certification by the superior court or the water court, an application for direct review must be filed with the superior court or the water court within thirty days of the filing of the petition for review in superior court or water court. The superior court or water court may certify a case for direct review only if the judicial review is limited to the record of the agency proceeding and the court finds that:
     (a) Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;
     (b) Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or the public interest;
     (c) An appeal to the court of appeals would be likely regardless of the determination in superior court; and
     (d) The appellate court's determination in the proceeding would have significant precedential value.
     Procedures for certification shall be established by court rule.
     (3)(a) For the purposes of direct review of final decisions of environmental boards, environmental boards include those boards identified in RCW 43.21B.005 and growth management hearings boards as identified in RCW 36.70A.250.
     (b) An environmental board may issue a certificate of appealability if it finds that delay in obtaining a final and prompt determination of the issues would be detrimental to any party or the public interest and either:
     (i) Fundamental and urgent statewide or regional issues are raised; or
     (ii) The proceeding is likely to have significant precedential value.
     (4) The environmental board shall state in the certificate of appealability which criteria it applied, explain how that criteria was met, and file with the certificate a copy of the final decision.
     (5) For an appellate court to accept direct review of a final decision of an environmental board, it shall consider the same criteria outlined in subsection (3) of this section, except as otherwise provided in chapter 43.21L RCW.
     (6) The procedures for direct review of final decisions of environmental boards include:
     (a) Within thirty days after filing the petition for review with the superior court or the water court, a party may file an application for direct review with the superior court or the water court and serve the appropriate environmental board and all parties of record. The application shall request the environmental board to file a certificate of appealability.
     (b) If an issue on review is the jurisdiction of the environmental board, the board may file an application for direct review on that issue.
     (c) The environmental board shall have thirty days to grant or deny the request for a certificate of appealability and its decision shall be filed with the superior court or the water court and served on all parties of record.
     (d) If a certificate of appealability is issued, the parties shall have fifteen days from the date of service to file a notice of discretionary review in the superior court or the water court, and the notice shall include a copy of the certificate of appealability and a copy of the final decision.
     (e) If the appellate court accepts review, the certificate of appealability shall be transmitted to the court of appeals as part of the certified record.
     (f) If a certificate of appealability is denied, review shall be by the superior court or the water court. The superior court's or the water court's decision may be appealed to the court of appeals.

Sec. 28   RCW 34.05.570 and 1995 c 403 s 802 are each amended to read as follows:
     (1) Generally. Except to the extent that this chapter or another statute provides otherwise:
     (a) The burden of demonstrating the invalidity of agency action is on the party asserting invalidity;
     (b) The validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken;
     (c) The court shall make a separate and distinct ruling on each material issue on which the court's decision is based; and
     (d) The court shall grant relief only if it determines that a person seeking judicial relief has been substantially prejudiced by the action complained of.
     (2) Review of rules. (a) A rule may be reviewed by petition for declaratory judgment filed pursuant to this subsection or in the context of any other review proceeding under this section. In an action challenging the validity of a rule, the agency shall be made a party to the proceeding.
     (b)(i) The validity of any rule, except a rule relating to instream flows established under chapter 90.22, 90.54, or 90.82 RCW, may be determined upon petition for a declaratory judgment addressed to the superior court of Thurston county, when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair the legal rights or privileges of the petitioner. The declaratory judgment order may be entered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.
     (ii) The validity of a rule relating to instream flows may be determined upon petition for a declaratory judgment addressed to the water court when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair the legal rights or privileges of the petitioner. The declaratory judgment order may be entered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.
     (c) In a proceeding involving review of a rule, the court shall declare the rule invalid only if it finds that: The rule violates constitutional provisions; the rule exceeds the statutory authority of the agency; the rule was adopted without compliance with statutory rule-making procedures; or the rule is arbitrary and capricious.
     (3) Review of agency orders in adjudicative proceedings. The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that:
     (a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied;
     (b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;
     (c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;
     (d) The agency has erroneously interpreted or applied the law;
     (e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
     (f) The agency has not decided all issues requiring resolution by the agency;
     (g) A motion for disqualification under RCW 34.05.425 or 34.12.050 was made and was improperly denied or, if no motion was made, facts are shown to support the grant of such a motion that were not known and were not reasonably discoverable by the challenging party at the appropriate time for making such a motion;
     (h) The order is inconsistent with a rule of the agency unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for inconsistency; or
     (i) The order is arbitrary or capricious.
     (4) Review of other agency action.
     (a) All agency action not reviewable under subsection (2) or (3) of this section shall be reviewed under this subsection.
     (b) A person whose rights are violated by an agency's failure to perform a duty that is required by law to be performed may file a petition for review pursuant to RCW 34.05.514, seeking an order pursuant to this subsection requiring performance. Within twenty days after service of the petition for review, the agency shall file and serve an answer to the petition, made in the same manner as an answer to a complaint in a civil action. The court may hear evidence, pursuant to RCW 34.05.562, on material issues of fact raised by the petition and answer.
     (c) Relief for persons aggrieved by the performance of an agency action, including the exercise of discretion, or an action under (b) of this subsection can be granted only if the court determines that the action is:
     (i) Unconstitutional;
     (ii) Outside the statutory authority of the agency or the authority conferred by a provision of law;
     (iii) Arbitrary or capricious; or
     (iv) Taken by persons who were not properly constituted as agency officials lawfully entitled to take such action.

Sec. 29   RCW 34.05.578 and 1988 c 288 s 518 are each amended to read as follows:
     (1) In addition to other remedies provided by law, an agency may seek enforcement of its rule or order by filing a petition for civil enforcement in the superior court or the water court.
     (2) The petition must name as respondent each alleged person against whom the agency seeks to obtain civil enforcement.
     (3) Venue is determined as in other civil cases.
     (4) A petition for civil enforcement filed by an agency may request, and the court may grant, declaratory relief, temporary or permanent injunctive relief, any other civil remedy provided by law, or any combination of the foregoing.

Sec. 30   RCW 34.05.588 and 1989 c 175 s 30 are each amended to read as follows:
     (1) If a person fails to obey an agency subpoena issued in an adjudicative proceeding, or obeys the subpoena but refuses to testify or produce documents when requested concerning a matter under examination, the agency or attorney issuing the subpoena may petition the superior court of any county where the hearing is being conducted or the water court, where the subpoenaed person resides or is found, or where subpoenaed documents are located, for enforcement of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, shall set forth in what specific manner the subpoena has not been complied with, and shall request an order of the court to compel compliance. Upon such petition, the court shall enter an order directing the person to appear before the court at a time and place fixed in the order to show cause why the person has not obeyed the subpoena or has refused to testify or produce documents. A copy of the court's show cause order shall be served upon the person. If it appears to the court that the subpoena was properly issued, and that the particular questions the person refused to answer or the requests for production of documents were reasonable and relevant, the court shall enter an order that the person appear before the agency at the time and place fixed in the order and testify or produce the required documents, and on failing to obey this order the person shall be dealt with as for contempt of court.
     (2) Agencies with statutory authority to issue investigative subpoenas may petition for enforcement of such subpoenas in accordance with subsection (1) of this section. The agency may petition the superior court of any county or the water court where the subpoenaed person resides or is found, or where subpoenaed documents are located. If it appears to the court that the subpoena was properly issued, that the investigation is being conducted for a lawfully authorized purpose, and that the testimony or documents required to be produced are adequately specified and relevant to the investigation, the court shall enter an order that the person appear before the agency at the time and place fixed in the order and testify or produce the required documents, and failing to obey this order the person shall be dealt with as for contempt of court.
     (3) Petitions for enforcement of agency subpoenas are not subject to RCW 34.05.578 through 34.05.590.

NEW SECTION.  Sec. 31   Nothing in this act is intended to affect the jurisdiction of the superior court for any general adjudication of water rights proceeding, water management, or enforcement dispute, or challenge of a rule adopting instream flows if such action before the court was filed prior to the effective date of this section.

NEW SECTION.  Sec. 32   Sections 3 through 10 and 12 through 17 of this act constitute a new chapter in Title 2 RCW.

NEW SECTION.  Sec. 33   If Senate/House Bill Joint Resolution No. . . . (Z-1175.1/04) fails to pass the legislature or if the resulting referendum to the voters fails to receive a majority approval of the electorate, this act is null and void.

NEW SECTION.  Sec. 34   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.