Z-0442.1

HOUSE BILL 1622

ByRepresentatives Blake, Kretz, Springer, Chandler, Chapman, Dent, and Shewmake; by request of Department of Ecology

AN ACT Relating to drought preparedness and response; amending RCW 43.83B.400, 43.83B.405, 43.83B.410, 43.83B.415, and 43.83B.430; adding new sections to chapter 43.83B RCW; decodifying RCW 43.83B.005, 43.83B.200, 43.83B.210, 43.83B.300, 43.83B.345, 43.83B.360, 43.83B.380, and 43.83B.385; repealing RCW 43.83B.220, 43.83B.230, and 43.83B.336; and providing an expiration date.

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

NEW SECTION.  Sec. 1. A new section is added to chapter 43.83B RCW to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

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

(2) "Drought condition" means that the water supply for a geographic area, or for a significant portion of a geographic area, is below seventy-five percent of normal and the water shortage is likely to create undue hardships for water users or the environment.

Sec. 2. RCW 43.83B.400 and 1989 c 171 s 1 are each amended to read as follows:

((It is the intent of))The legislature ((to provide emergency powers to the department of ecology to enable it to take actions, in a timely and expeditious manner, that are designed to alleviate hardships and reduce burdens on various water users and uses arising from drought conditions. As used in this chapter, "drought condition" means that the water supply for a geographical area or for a significant portion of a geographical area is below seventy-five percent of normal and the water shortage is likely to create undue hardships for various water uses and users.))recognizes that drought and water shortages can place a significant hardship on Washington communities, farms, and the natural environment. Rising temperatures due to climate change may cause water supply shortages to be more frequent and severe in the future. Therefore, the ability to respond to drought and water shortage emergencies is critical to the long-term prosperity of our state. It is the intent of the legislature to provide the department with the authority to effectively and efficiently take actions when a drought emergency occurs to alleviate hardship on water users and our natural environment.

Sec. 3. RCW 43.83B.405 and 1989 c 171 s 2 are each amended to read as follows:

(1) Whenever it appears to the department that drought conditions may develop, the department may issue a drought advisory. The drought advisory should seek to increase the awareness and readiness of affected water users and may recommend voluntary actions to alleviate drought impacts.

(2)(a) Whenever it appears to the department ((of ecology)) that a drought condition either exists or is forecast to occur within the state or portions thereof, the department ((of ecology)) is authorized to issue orders of drought emergency, pursuant to adopted rules ((previously adopted)), to implement the powers as set forth in RCW 43.83B.410 through 43.83B.420. ((The department shall, immediately upon the issuance of an order under this section, cause said order to be published in newspapers of general circulation in the areas of the state to which the order relates.))

(b) Prior to the issuance of an order of drought emergency, the department shall (((a))):

(i) Consult with affected federally recognized tribes and ((obtain the views of)) the federal and state government entities identified in the drought contingency plan periodically revised by the department pursuant to ((RCW 43.83B.410(4),))section 7 of this act; and

(((b)))(ii) Obtain the written approval of the governor.

(d) Orders of drought emergency issued under ((this section))(a) of this subsection shall be deemed orders for the purposes of chapter 34.05 RCW.

(e) A person may petition the department to declare a drought emergency for the state or portions of the state.

(((2)))(3)(a) Any order issued under subsection (((1)))(2) of this section shall contain a termination date for the order. The termination date shall be not later than one calendar year from the date the order is issued. Although the department may, with the written approval of the governor, change the termination date by amending the order, no such amendment or series of amendments may have the effect of extending its termination to a date which is later than two calendar years after the issuance of the order.

(((3)))(b) The provisions of ((subsection (2) of)) this section do not preclude the issuance of more than one order under subsection (((1)))(2) of this section for different areas of the state, or sequentially for the same area, as the need arises ((for such an order or orders)).

Sec. 4. RCW 43.83B.410 and 1989 c 171 s 3 are each amended to read as follows:

Upon the issuance of an order of drought emergency under RCW 43.83B.405(2), the department ((of ecology is empowered to))may:

(1)(a) Authorize emergency withdrawal of public surface and ground waters, including dead storage within reservoirs, on a temporary basis and authorize temporary or permanent associated physical works ((which may be either temporary or permanent)). The department may prioritize the approval of emergency withdrawal authorizations for domestic use over applications for emergency withdrawals for other purposes.

(b) The termination date for ((the authority to make such an)) emergency withdrawals may not be later than the termination date of the order issued under RCW 43.83B.405(2)((under which the power to authorize the withdrawal is established)).

(c) The department ((of ecology)) may issue ((such))emergency withdrawal authorizations only when, after investigation and after providing appropriate federal, state, and local governmental bodies and affected federally recognized tribes an opportunity to comment, the following are found:

(i) The waters proposed for withdrawal are to be used for a beneficial use involving a previously established activity or purpose;

(ii) The previously established activity or purpose was furnished water through rights applicable to the use of a public body of water that cannot be exercised due to the lack of water arising from natural drought conditions; and

(iii) The proposed withdrawal will not reduce flows or levels below essential minimums necessary (((A))) to ((assure))ensure the maintenance of fisheries requirements((,)) and (((B))) to protect federal and state interests including, among others, power generation, navigation, and existing water rights((;)).

(((b)))(d) All emergency withdrawal authorizations issued under this section shall contain provisions that allow for termination of withdrawals, in whole or in part, whenever withdrawals will conflict with flows and levels as provided in (((a)))(c)(iii) of this subsection. ((Domestic and irrigation uses of public surface and ground waters shall be given priority in determining "beneficial uses."))

(e) As to water withdrawal and associated works authorized under this subsection, the requirements of chapter 43.21C RCW and public bidding requirements as otherwise provided by law are waived and inapplicable. All state and local agencies with authority to issue permits or other authorizations for such works shall, to the extent possible, expedite the processing of the permits or authorizations in keeping with the emergency nature of the requests and shall provide a decision to the applicant within fifteen calendar days of the date of application. All state departments or other agencies having jurisdiction over state or other public lands, if such lands are necessary to effectuate the withdrawal authorizations issued under this subsection, shall provide short-term easements or other appropriate property interest upon the payment of the fair market value. This mandate shall not apply to any lands of the state that are reserved for a special purpose or use that cannot properly be carried out if the property interest were conveyed;

(2) Approve a temporary change in purpose, place of use, ((or)) point of diversion, or point of withdrawal, consistent with existing state policy allowing transfer or lease of waters between willing parties, as provided for in RCW 90.03.380, 90.03.390, and 90.44.100. However, compliance with any requirements of (((a))) notice of newspaper publication of these sections or (((b))) the state environmental policy act((,))under chapter 43.21C RCW, is not required when such changes are necessary to respond to drought conditions as determined by the department ((of ecology)). An approval of a temporary change of a water right as authorized under this subsection is not admissible as evidence in either supporting or contesting the validity of water claims in ((State of Washington, Department of Ecology v. Acquavella))a general adjudication under RCW 90.03.210 or any similar proceeding where the existence of a water right is at issue((.));

(3) Employ additional persons for specified terms of time, consistent with the term of a drought condition, as are necessary to ensure the successful performance of the activ