H-1729.1
_______________________________________________
HOUSE BILL 2193
_______________________________________________
State of Washington
56th Legislature
1999 Regular Session
By Representative Koster
Read first time 02/17/1999. Referred to Committee on Agriculture
&Ecology.
AN ACT Relating to water banking; adding
a new section to chapter
90.03 RCW; adding a new section to chapter 90.42 RCW; adding a
new
section to chapter 90.44 RCW; adding a new section to chapter 90.54
RCW; and adding a new chapter to Title 90 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
{+ NEW SECTION. +} Sec. 1.
PURPOSE. The purpose of this chapter
is to enable an optional water allocation method within qualified
water
resource inventory areas, by allowing local water management districts
to restructure water holdings into new packages more suitable to
current and future water users, in a manner that will result in
more
efficient use of water resources, ensure the maintenance of adequate
instream flows for fish, improve protection of existing water rights,
help alleviate water shortages, provide a flexible and timely means
of
water allocation, save capital outlays, reduce development costs,
improve the economic well-being of the state's citizenry and
communities, maximize involvement by local citizens in water resource
management, and provide incentives for water conservation, while
improving effectiveness of state oversight of water resources.
{+ NEW SECTION. +} Sec. 2.
FINDINGS. The legislature finds that:
(1) Water banking and marketing has proven
to be of merit in
addressing water resource issues in other states;
(2) Water banking and limited water marketing
by water resource
management districts can provide a means of water allocation that
will
result in more efficient use of water resources, ensure the maintenance
of adequate instream flows for fish, improve protection of existing
water rights, help alleviate water shortages, provide a flexible
and
timely means of water allocation, save capital outlays, reduce
development costs, improve the economic well-being of the state's
citizenry and communities, maximize involvement of local citizens
in
water resource management, and provide incentives for water
conservation, while improving effectiveness of state oversight
of water
resources; (3) There is no single best
model by which water banking and
marketing could or should operate; local banks and markets should
be
permitted sufficient latitude in their formation and operation
to
reflect site-specific conditions, within a state-established framework
of suitable guidelines, standards, and minimum requirements; and
(4) The state should enable and assist
in the formation of water
resource management districts in water resource inventory areas
that
meet the terms and conditions set forth in this chapter.
{+ NEW SECTION. +} Sec. 3.
DEFINITIONS. The definitions in this
section apply throughout this chapter unless the context clearly
requires otherwise.
(1) "Board" means the board of directors
of the water resource
management districts. (2) "Department"
means the department of ecology.
(3) "Director" means the director of the
department of ecology.
(4) "District area" means the surface
area encompassed by the
boundary of the water resource management district over which the
district has water resource management jurisdiction.
(5) "Implementing rules" means the rules
necessary to give force
and effect to the provisions of this chapter that create rights
or
obligations for any party, including a state agency, or that establish
water management policy.
(6) "Inchoate water right" means a water
right in good standing,
some, but not all, of which can be documented as having been put
to
beneficial use.
(7) "Manager" means the person or persons
authorized by the board
to manage the activities of the district.
(8) "Minimum instream flow" means a minimum
flow under chapter
90.03 or 90.22 RCW or a base flow under chapter 90.54 RCW.
(9) "Person" means any individual, firm,
association, water users'
association, corporation, irrigation district, or municipalcorporation.
(10) "Public water system" has the meaning
provided in RCW70.119A.020.
(11) "Margin of error" means the unavoidable
total cumulative error
in measuring water flows during water resource assessments.
(12) "WRIA" means a water resource inventory
area established in
chapter 173-500 WAC as it existed on January 1, 1997.
(13) "WRIA plan" means the product of
a planning unit established
under the provisions of chapter 90.82 RCW.
(14) "Water resource management district"
means a water resource
management district created by this chapter.
(15) "Water bank" means an entity into
which water rights may be
deposited, and from which water flows may be withdrawn, that is
managed
by the board.
(16) "Water marketing" means voluntary
transfers of water into, and
authorized transfer of water out of, the water banks under the
terms
and conditions set forth in this chapter.
(17) "Water reserve" means a quantity
of stored water that is kept
in reserve to meet potential shortfalls in water supply due to
contingencies such as prolonged drought, substantial leaks in water
systems, nonpermitted water use, and the margin of error associated
with data collection during water resource assessments.
(18) "Water resource assessment" means
the assessment of water
supply and use within a WRIA as provided in RCW 90.82.070.
(19) "Water right" means a valid certificate
or permit issued by
the department under chapter 90.03 RCW, or a claim of water right.
(20) "Water transaction" means an accepted
deposit of water flow
into, or an authorized withdrawal of water flow from, a water resource
management district water bank, as evidenced by a lawfully executed
contract between the parties depositing or withdrawing water and
theboard.
{+ NEW SECTION. +} Sec. 4.
WATER RESOURCE MANAGEMENT DISTRICTS.
(1) Water resource management districts may be established for
the
purposes of this chapter.
(2) A water resource management district
shall be a corporate body,
shall be of permanent duration, and shall have a seal.
(3) A water resource management district
shall be known and
designated as water resource management district for . . . . .
. WRIA
subdivision of the . . . . . . WRIA of the county in which it islocated.
(4) A water resource management district,
with the authorities and
responsibilities as set forth in subsection (5) of this section,
shall
be formed according to the procedure set forth in subsection (6)
of
this section in WRIAs or multi-WRIA management areas identified
in RCW
90.82.040 that meet the following terms and conditions:
(a) Each management area must be undertaking,
or must have
completed, water resource assessments under RCW 90.82.070;
(b) Each management area must be undertaking
to establish, under
RCW 90.82.080, or must have established minimum instream flows;
(c) Each management area must, where applicable,
be undertaking
planning under chapter 70.116 RCW, or must have approved coordinated
water system plans under chapter 70.116 RCW.
(5) A water resource management district
shall:
(a) Monitor all water flows throughout
the district area at a
frequency to maintain accurate and timely information about surface
water and ground water flow, use, and any and all other relevant
water
resource parameters necessary to the fulfillment of its
responsibilities under this chapter;
(b) As provided in this chapter, finance,
construct, maintain, and
operate facilities to capture, store, and use peak surface water
flows,
to maintain established minimum instream flows in all streams and
rivers within its district area, protect existing water rights,
maintain a water reserve, and enable limited water marketing under
the
terms and conditions set forth in this chapter;
(c) Release stored water into the waters
within the boundary of the
district to maintain established minimum instream flows and protect
existing water rights;
(d) Establish and manage a water bank
under the terms of thischapter;
(e) Hold, manage, and allocate, on behalf
of the state, water from
trust water rights acquired by accepting deposits to water banks
as
provided in this chapter;
(f) Purchase, lease, or accept temporary
or permanent donations of
water from water right holders for deposit into water banks as
provided
in this chapter; (g) Lease water to applicants
therefor;
(h) Incur bonded indebtedness to finance
the construction of water
capture, storage, and distribution facilities as provided by thischapter;
(i) Acquire, purchase, hold, lease, manage,
occupy, and sell real
and personal property or any interest therein, enter into and perform
all necessary contracts, appoint and employ necessary agents and
employees and fix their compensation, employ contractors including
contracts for professional services, sue and be sued, and do any
and
all lawful acts required and expedient to carry out the purposes
ofthis chapter.
(6) A water resource management district
is established as follows:
(a) Any holder or holders of water rights
located within the
boundaries of a potential water resource management district's
district
area who wish to form a water resource management district shall
develop, or cause to be developed, a preliminary district management
plan, which shall include a study to determine whether conducting
the
activities that this chapter permits a water resource management
district to conduct are consistent with the intent of this chapter.
The plan shall, in a comprehensive, professional, and verifiable
manner, using the water resource assessment performed for the WRIA
in
which the potential district is located, ascertain or propose at
least
the following:
(i) The availability of sufficient water
to establish a water bank
as provided in section 12 of this act;
(ii) The potential for capture, storage,
and distribution of peak
flows by affordable technology, and cost estimates thereof;
(iii) An estimate of the existing water
right holders who are
potential depositors to a water bank within the district area,
either
through employment of conservation measures, reuse, reclaimed water,
or
transfer of unused portions of existing rights;
(iv) An assessment of the impact of a
water market mechanism, as
provided in this chapter, upon the social opportunity costs and
benefits and nonmarket public values associated with water resource
uses in the proposed district area, such as fish and wildlife habitat,
water quality, power generation, and water-based recreation;
(v) An assessment of a mitigation plan
for any identified adverseimpacts;
(vi) An outline of the proposed plan of
operation of the water bank
and water market as provided in this chapter, including, but notlimited
to:
(A) Its district boundary;
(B) The number and term of office of the
members of its board;
(C) Its proposed pricing mechanism for
both water deposits and
water withdrawals; (D) Sources of funds;
(E) Identification of the type, capacity,
and cost of construction,
maintenance, and operation of any storage and distribution projects
proposed in the plan;
(F) Sources of ground and surface water
to be stored, deposited,
and withdrawn;
(G) Any limitations of types of rights,
source locations, class of
owner, or type of use that might be imposed upon either deposits
accepted or withdrawals permitted by the water bank;
(H) Procedures for determining the bankable
quantity of water
provided by depositors; and
(I) The mechanism of posting and processing
offers to deposit and
requests to withdraw water from the water resource management
district's water bank; and
(vii) An estimate of the potential for
improving water resource
management by water banking and marketing within the proposed districtarea.
(b) If the study required by subsection
(5) of this section clearly
supports a conclusion that formation of a water resource management
district would most likely improve management of the area's water
resources consistent with the intent of this chapter, supporters
of
formatting a water resource management district may circulate,
or cause
to be circulated, among the other water rights holders located
within
the potential district's area, a petition calling for forming the
district. A petition receiving valid signatures of at least
twenty
percent of the water rights holders located within the prospective
district's area may be submitted to the department. The petition
must
contain a true copy of the results of the study undertaken as part
of
the preliminary plan required by subsection (5) of this section,
and a
true copy of draft articles of incorporation and bylaws of the
prospective water resource management district. The petition
must
state that establishment of the district will be conducive to the
public health, convenience, and welfare and will benefit the property
within the district. The petition must state the proposed
name of the
district, according to the requirements of subsection (3) of this
section. The petition must be accompanied by a bond of five
thousand
dollars to defray costs incurred by the department in considering
the
creation of the water resource management district. There
is no limit
to the time available to those circulating a petition; however,
all
signatories to the petition must be holders of valid water rights
at
the time the petition is submitted to the department.
(c) The department shall complete a review
of the preliminary plan
within ninety days of receiving a petition to form a district.
If the
department concurs with the plan's conclusion, the department shall
arrange a meeting between its representatives, representatives
of the
petitioners, of local tribes with jurisdiction, of affected county
governments, and of cities located wholly or partially inside the
proposed district area, to draft a memorandum of agreement that
establishes the specific water resource management objectives of
the
district and the general terms and conditions of the operation
of the
water resource management district, based upon and incorporating
the
elements of the preliminary plan submitted with the petition, suitably
modified to address concerns of the affected parties. The
terms of the
memorandum of agreement may not be inconsistent with the watershed
plan
applicable to the proposed district area adopted under chapter
90.82
RCW. Terms and conditions not directly related to water resource
management as provided in this chapter may not be incorporated
into the
memorandum of agreement.
(d) If the petition and the attached feasibility
study are verified
and accepted by the department, the department shall notify the
legislative authority of each county in which the district area
is
located, informing each of the intent of the petitioners to form
a
water resource management district, whereupon each legislative
authority, at a regular or special meeting, shall cause to be published
once a week for at least two weeks in one or more newspapers of
general
circulation in the proposed district, a notice that the petition
has
been presented to the department, setting forth the boundaries
of the
proposed district, summarizing its purpose and plan, and stating
the
time and place of a public hearing, which shall be held no earlier
than
forty-five days from the date the notice is postmarked. The
notice
shall clearly indicate the criteria for eligibility to vote on
the
formation of the proposed district, and shall indicate how true
copies
of the preliminary plan, draft articles of incorporation and bylaws,
and draft memorandum of agreement may be obtained by those eligible
voters. At that hearing, any person, firm, or corporation
may appear
before the county legislative authority and make a statement in
support
of or opposition to the establishment of the district.
(e) If the department finds, upon review
of the testimony provided
at the public hearing provided by (d) of this subsection, that
the
proposed water resource management district would fulfill the intent
of
this chapter, the department shall authorize the auditor of each
county
within which the area of the proposed district is located to hold
a
special election on the first special election date provided for
in RCW
29.13.020 that falls at least three months after the date of the
public
hearing as provided in this section.
(f) Those persons eligible to vote in
the election are those living
in and registered to vote in the district area who are also either
holders of water rights, owners of wells exempt from permits under
RCW
90.44.050, or owners of real property located within the proposeddistrict
area.
(g) The number of votes allotted to each
voter shall be as set
forth in this chapter.
(h) If the water resource management district
is created, the
county or counties may charge to the board the costs of the auditor
or
auditors related to the election to authorize the establishment
of thedistrict.
(i) The election shall also provide for
election of the initial
members of the board of the prospective water resource management
district, under the terms and conditions set forth in this chapter.
(j) Formal completion of the establishment
of a water resource
management district requires:
(i) Affirmative votes from the electors
within the proposed
district area, as follows: Seventy percent of the total of
all holders
of inchoate water rights, plus fifty percent of all other persons
eligible to vote;
(ii) Execution of a final version of the
memorandum of agreement by
all parties thereto; and
(iii) Adoption by the department of a
rule that applies only to the
district. {+ NEW SECTION. +} Sec.
5. CONFLICT OF INTEREST. Any board
member who seeks to enter into, or has any interest in any entity
that
seeks to enter into, any water transaction authorized under this
chapter, must disclose the transaction to the other board members
prior
to any board action on any aspect of the transaction, and must
refrain
from voting on any aspect of the transaction.
{+ NEW SECTION. +} Sec. 6.
QUALIFICATIONS OF WATER MANAGER.
Persons hired by the board to serve as water manager must have
the
following qualifications:
(1) A bachelor of science degree from
an accredited institution in
a water-related field, such as hydrology or engineering;
(2) A demonstrated familiarity with state
water law and hydrology;and
(3) Experience in one water resource management
field or more, as
determined by the board.
{+ NEW SECTION. +} Sec. 7.
ESTABLISHMENT OF DISTRICT AREA. The
boundaries of the district area of a water resource management
district
are coterminous with the boundaries of subdivisions of WRIAs
established by the department. The districts may include
within their
boundaries one or more counties, cities, and towns, or other political
subdivisions. However, no portion or all of any city or town
may be
included without the consent by resolution of the city or town
legislative authority.
{+ NEW SECTION. +} Sec. 8.
JURISDICTION OVER WATER RESOURCES.
(1) The following waters located within the boundaries of a district
area fall under the jurisdiction of a water resource management
district, to be allocated under the terms and conditions set forth
in
this chapter, and the terms and conditions of the memorandum of
agreement provided for in section 4(6)(c) of this act:
(a) All surface and ground water not allocated
to existing water
rights or instream flows;
(b) All waters allocated to the trust
water rights established
under chapter 90.42 RCW;
(c) All water captured and stored in storage
facilities constructed
by a water resource management district.
(2) A water resource management district
may transfer water back
and forth between water sources under its jurisdiction as needed
to
fulfill its duties and responsibilities under this chapter.
{+ NEW SECTION. +} Sec. 9.
LIMITATION OF AUTHORITY AND
RESPONSIBILITY. No water resource management district may
purvey water
to retail customers or in any other way perform the essential functions
of a public water system.
{+ NEW SECTION. +} Sec. 10.
WATER RESOURCE MONITORING. A water
resource management district shall perform or cause to be performed
continuous monitoring of all water flows throughout the district
area
in order to maintain accurate and timely information about magnitudes
of water flow, water storage, water use, and any and all other
relevant
water resource parameters necessary to the fulfillment of its
responsibilities under this chapter.
{+ NEW SECTION. +} Sec. 11.
WATER STORAGE AND DISTRIBUTION
FACILITIES. (1) If the water resource assessment indicates
there is,
within the district area, insufficient water available, using current
supplies, to meet minimum instream flows, provide water to all
existing
permitted water users to the full extent of their water rights,
establish a water reserve, and provide water for likely future
beneficial uses, a water resource management district shall undertake
the financing, construction, maintenance, and operation of water
storage and distribution facilities as necessary to fulfill its
responsibilities under this chapter.
(2) A water resource management district
may undertake the
financing, construction, maintenance, and operation of additional
water
storage and distribution facilities it deems necessary from time
to
time to fulfill the terms and conditions of its responsibilities
under
this chapter.
(3) Water storage and distribution facilities
as provided under
this section may include, but are not limited to, natural and
artificial surface reservoirs and natural and artificial ground
water
aquifer recharge by injection wells, spreading basins, and other
recharge efforts.
(4) Surface storage facilities meeting
the requirements set forth
in this section may provide a variety of uses, including fish spawning
and rearing habitat and recreational uses, and, thus, may qualify
to be
classified as multipurpose impoundment structures as described
in RCW
90.54.020(6).
(5) Surface storage facilities meeting
the requirements set forth
in this section may be considered for fish and wildlife habitat
enhancement or mitigation projects under chapter 90.74 RCW.
(6) Surface storage facilities with demonstrable
wetlands functions
meeting the requirements set forth in this section may be used
for
wetland mitigation banking purposes under chapter 90.84 RCW.
(7) At all times, a water resource management
district shall
undertake water storage and distribution projects in a cost-effective
manner, using the best available and affordable technology.
(8) The state and all local governments
with jurisdiction shall
render all means provided under state and local statute and rule
to
expedite all necessary permits for the construction and operation
of
such storage and distribution facilities.
{+ NEW SECTION. +} Sec. 12.
WATER BANKS. (1) A water resource
management district shall establish a water bank and shall ensure
that
the water bank holds all waters under its jurisdiction, as provided
in
this chapter.
(2) The manager shall utilize the water
bank to facilitate water
marketing as provided by this chapter.
(3) The manager shall at all times maintain
complete and accurate
records of all water bank transactions, including the deposits
and
withdrawals provided for in this chapter. The manager shall
maintain
data that includes: The type of each transaction; the duration
of each
transaction; and the magnitude, both annual and instantaneous flow,
of
the water flow associated with each transaction. The manager
shall
make available for public inspection, during ordinary business
hours,
the records of the water bank.
(4) The manager shall ensure the solvency
of the water bank at all
times. The manager shall maintain in the district water bank
deposits
of sufficient duration and magnitude to ensure sufficient water
to meet
all water resource responsibilities of the water resource management
district. Failure of the manager to maintain the solvency
of the water
bank may result in dissolution of the water resource management
district by department order, in addition to applicable civil and
criminal actions.
(5) The manager shall, in computing the
amount of water available
for allocation from the water bank, take into account the net return
flow from each beneficial use within the district area.
{+ NEW SECTION. +} Sec. 13.
WATER MARKETING. (1) Water resource
management districts may market the waters under their jurisdiction,
according to the terms and conditions set forth in this section,
and
the terms and conditions of the memorandum of agreement provided
for in
this chapter. Water marketing under this section consists
of accepting
deposits into, and permitting withdrawals from, the water bank,
at
prices set by a market mechanism established by the district.
(2) The board shall establish rules and
operate the water market at
all times to: Maximize economic efficiency, provide equity
to all
parties, minimize transaction costs, discourage speculative behavior,
factor into water pricing all relevant externalities identified
in the
water resource management district plan, and allocate risk
appropriately. The board shall craft district water market
rules that
allow for predictable outcomes for all parties participating in
water
marketing within the district area.
(3) The board shall establish rules for
operation of the water
market, including the mechanism for setting water prices and processing
all deposit offers and withdrawal requests, according to the terms
and
conditions set forth in this chapter and the terms and conditions
set
forth in the memorandum of agreement. The board shall publish
the
rules and make them available to all water rights holders and potential
water users within the district area.
(4) All the terms and conditions of each
deposit into and each
withdrawal from a water bank managed by a water resource management
district must be set forth in a written contract, executed by
representatives of, and binding upon, parties thereto.
(5) The board may purchase, lease, or
accept donations of water
from water rights holders, on a temporary or permanent basis, for
deposit into a water bank as provided in this chapter.
(6) Contracts between depositors of water
into a water bank and the
water resource management district may contain an option enabling
the
water resource management district to renew such contracts under
mutually agreed upon terms and conditions.
(7) Before accepting any water deposit
under the terms of this
section, the manager shall investigate the legal and physical status
of
the depositor's water rights, including the demonstrated consumption
of
the depositor, if any, to ensure that the amount of water offered
by
the depositor is both legally and physically available.
(8) Before accepting any water deposit
under the terms of this
section, the manager shall determine if the prospective depositor
is a
member of any type of district under the laws of the state of
Washington, including irrigation districts and water districts,
and, if
the prospective depositor is, the manager shall, before accepting
the
prospective deposit, require the prospective depositor to obtain
approval from the authority of the district.
(9) Before accepting any water deposit
under the terms of this
section, the manager shall determine if the water offered by a
prospective depositor is encumbered by any private contract or
other
arrangement, including one established by common custom or practice,
and shall condition the acceptance of any such deposit upon the
prospective depositor's removal of all encumbrances.
(10) The board may lease water from the
water bank to prospective
water users who apply for it.
(11) Uses of water permitted to those
requesting withdrawals may be
continuous in nature or may be intermittent or seasonal in nature.
If
the withdrawal is intermittent or seasonal in nature, the withdrawn
water, during the periods of the year in which it is unused, must
be
returned to the water bank.
(12) No lease of water withdrawal may
extend further than ninety-
nine years without approval of the department.
(13) The water resource management district
shall offer all lessees
of water withdrawals the right of first refusal to lease the same
amount of water for specified lengths of time.
(14) Applicants for withdrawals from the
water bank must put the
water applied for to actual beneficial use within one year from
the
execution of the contract therefor, or the withdrawal contract
is null
and void, and the water withdrawal is prohibited.
(15) The manager shall reject any proposed
water withdrawal from
the water bank if the proposed withdrawal has potential to impair
minimum instream flow levels or potential to reduce the quantity
of
water available to other existing water right holders.
(16) Before issuing approval of any withdrawal,
the manager shall
assess any potential third-party impacts of any prospective water
withdrawal under this section, and may reject or condition the
approval
of the withdrawal upon finding significant impacts. The finding
must
be set forth in a document of public record, and must reflect
consideration of the terms and conditions of the water resource
management district memorandum of agreement as provided in thischapter.
(17) A water resource management district
may charge appropriate
transaction costs to persons who deposit and to persons who withdraw
water from the district. The transaction costs may include
a prorated
share of the cost of recovery of investments in capture, storage,
and
distribution facilities, district management overhead, and other
reasonable costs. Magnitudes of transaction costs must be
proportional
to the magnitudes of deposits and withdrawals. Although transaction
costs may vary between classes of water rights holders, water users,
water sources, and other relevant water resource parameters,
transaction costs must be generally similar among similar classes.
{+ NEW SECTION. +} Sec. 14.
MONITORING--INVESTIGATION. (1) The
department shall monitor the operation of a water resource management
district to determine if the district is fulfilling its obligations
under this chapter. The manager and board of each district
shall
cooperate fully with the department while it conducts any
investigation. The department may visit the offices and other
facilities of a district to fulfill its obligations under this
section,
and may do so without warning to the manager or board.
(2) After any investigation, if the department
concludes that the
district is failing to meet its obligations under this chapter,
or
failing to meet the terms and conditions of the memorandum of agreement
as provided in this chapter, and if the department deems the situation
correctable by the district, the department shall issue an
administrative order under chapter 34.05 RCW, detailing the corrective
action to be undertaken by the district.
(3) If the corrective action is not undertaken
according to the
terms and conditions of the administrative order, or if the department
deems infraction uncorrectable by the district, the department
may, at
its discretion, order the dissolution of the district.
{+ NEW SECTION. +} Sec. 15.
EXEMPTION FROM APPEAL. Water
transactions by a water resource management district may not be
appealed under RCW 90.03.200, however any person may file an appeal
with the department on grounds that any consummated or contemplated
water transaction under this chapter has had, is having, or could
have
the effect of impairing established minimum instream flows within,
or
downstream of, the district area. A true copy of the appeal
must be
served upon the manager when it is filed with the department.
Upon
filing of the appeal, the department shall conduct an investigation
of
the merit of the appeal and shall take such action as it deems
appropriate as provided in this chapter. Nothing in this
section
limits the rights of water rights holders, the state, or other
affected
parties to file suits in equity in state court against the board.
{+ NEW SECTION. +} Sec. 16.
RIVER IMPROVEMENT FUND TAX. Upon
request by the board, the legislative authority of the county or
counties in which the district is located may dedicate a portion
of the
river improvement fund tax under RCW 86.12.010 for the purposes
of
funding capture, storage, and distribution facilities as provided
in
this chapter.
{+ NEW SECTION. +} Sec. 17.
RIGHTS NOT IMPAIRED. (1) Nothing in
this chapter affects or impairs any existing water rights.
(2) Nothing in this chapter infringes
upon the rate-making
prerogatives of any public water purveyor.
{+ NEW SECTION. +} Sec. 18.
GOVERNING BOARD--TERMS OF OFFICE--
ELECTION--APPOINTMENT--VACANCIES--QUALIFICATIONS. (1) The
number of
members serving on the board shall be as set forth in the memorandum
of
agreement establishing the water resource management district.
The
term of office for each member of a board is six years and until
his or
her successor is elected and qualified. One member of the
board is
elected at the time of special district general elections in each
even-
numbered year for a term of six years, beginning as soon as the
election returns have been certified for assumption of office by
elected officials of cities.
(2) The terms of office of the initial
members of the board are
limited to provide staggered six-year terms. One-third of
the members-
elect receiving the highest numbers of votes shall serve for a
full
six-year term; one-third receiving the next highest numbers of
votes
shall serve for an initial term of four years; and the remaining
one-
third shall serve an initial term of two years.
(3) After the initial election forming
the district, regular
elections for members of the board shall be special purpose elections,
regularly held on the first Tuesday after the first Monday in February
in each even-numbered year, at which a member of the board is regularlyelected.
(4) Any registered voter living in the
area of the district, who is
also an owner of real property or holder of a water right located
within the district, may become a candidate for a position on the
board
by filing written notice of intent with the county auditor at least
sixty days before a special district general election. The
county
auditor in consultation with the district shall establish the filing
period. The names of all candidates for such positions shall
be listed
alphabetically.
(5) Members of the board shall hold office
until their successors
are elected and qualified, and shall assume office as soon as the
election returns have been certified.
(6) The requirements for the filing period,
the method for filing
declarations of candidacy for the board of the district, and the
arrangement of candidate names on the ballot for all district elections
conducted after the initial election in the district are the same
as
the requirements for the initial election in the district.
No primary
elections may be held for the board.
(7) When a vacancy occurs in the board,
the legislative authority
of the county within which the district, or the largest portion
of the
district, is located, shall appoint someone who meets the
qualifications in subsection (4) of this section to serve until
a
person is elected, at the next special district general election
occurring sixty or more days after the vacancy has occurred, to
serve
the remainder of the unexpired term. The person so elected
shall take
office immediately when qualified as defined in RCW 29.01.135.
(8) If an election for the position which
became vacant would
otherwise have been held at this special district election, only
one
election shall be held, and the person elected to fill the succeeding
term for that position takes office immediately when qualified
as
defined in RCW 29.01.135 and serves both the remainder of the unexpired
term and the succeeding term. A vacancy occurs upon the death,
resignation, or incapacity of a board member, or whenever the board
member ceases being a qualified voter of the district.
(9) An elected or appointed member of
a board, or a candidate for
a board, must be a qualified voter of the district as provided
in
subsection (4) of this section; however, the state, its agencies
and
political subdivisions, or their designees under RCW 85.38.010(3)
are
not eligible for election or appointment.
{+ NEW SECTION. +} Sec. 19.
BOARD--COMPENSATION AND EXPENSES.
Board members may receive up to seventy dollars for attendance
at
official meetings of the board and for each day or major part thereof
served and for all necessary services actually performed in connection
with duties as a member. The board shall fix the compensation
to be
paid to the members, secretary, and all other agents and employees
of
the district. Compensation for the members shall not exceed
six
thousand seven hundred twenty dollars in one calendar year.
A member
is entitled to reimbursement for reasonable expenses actually incurred
in connection with service on the board, including subsistence
and
lodging, while away from the member's place of residence and mileage
for use of a privately owned vehicle in accordance with chapter
42.24RCW.
Any member may waive all or any portion
of the compensation payable
under this section for any period during his or her term of office
by
filing a written waiver with the secretary as provided in this
section.
The waiver, to be effective, must be filed any time after the member's
election and before the date on which the compensation would otherwise
be paid. The waiver shall specify the month or period of
months for
which it is made.
{+ NEW SECTION. +} Sec. 20.
BOARD--BOND. Each board member,
whether elected or appointed, shall enter into a bond, payable
to the
district. The bond shall be in the sum of not less than one
thousand
dollars nor more than five thousand dollars, as set forth in the
memorandum of agreement provided in this chapter. The bond
shall be
conditioned on the faithful performance of the member's duties
on the
board and shall be filed with the county clerk of the county within
which the district, or the largest portion of the district, is
located.
{+ NEW SECTION. +} Sec. 21.
GENERAL ELECTIONS. General elections
shall be held in each district on the first Tuesday after the first
Monday in February in each even-numbered year. The auditor
of the
county within which a district, or the largest portion of a district,
is located may provide for special elections whenever necessary.
{+ NEW SECTION. +} Sec. 22.
VOTING RIGHTS. (1) Eligible voters
of the district, as specified in this chapter shall receive two
votes
at any election.
(2) If multiple undivided interests, other
than community property
interests, exist in a water right, well, or lot or parcel, and
no
person owns a majority undivided interest, the owners of undivided
interests at least equal to a majority interest may designate inwriting:
(a) Which owner is eligible to vote and
may cast two votes; or
(b) Which two owners are eligible to vote
and may cast one voteeach.
(3) If the water right, well, or land
is owned as community
property, each spouse is entitled to one vote if both spouses otherwise
qualify to vote, unless one spouse designates in writing that the
other
spouse may cast both votes.
(4) A corporation, partnership, or governmental
entity shalldesignate:
(a) A natural person to cast its two votes;
or
(b) Two natural persons to each cast one
of its two votes.
{+ NEW SECTION. +} Sec. 23.
PRESUMED ELIGIBLE VOTERS' LIST--
NOTICE OF REQUIREMENTS OF VOTING AUTHORITY--COPY OF VOTERS' LIST
TO
COUNTY AUDITOR. (1) Each district shall prepare and maintain
a list of
presumed eligible voters and shall ensure that the list includes:
(a) The assessor's tax number for each
lot or parcel in thedistrict;
(b) Each water right or well number in
the district;
(c) The name or names of the owners of
such water rights, well, or
lots and parcels and their mailing address;
(d) The extent of the ownership interest
of the persons; and
(e) If the persons are natural persons,
whether they are known to
be registered voters in the state of Washington.
(2) Whenever a voters' list is prepared,
the district shall attempt
to notify each owner of the requirements necessary to establish
voting
authority to vote. Whenever water rights, wells, or lots
or parcels in
the district are sold, the district shall attempt to notify the
purchasers of the requirements necessary to establish voting authority.
(3) Each district shall provide a copy
of the voters' list, and any
revised list, to the auditor of the county within which all or
the
largest portion of the district is located. The district
must compile
the list of eligible voters and provide it to the county auditor
by the
first day of November preceding the special district general election.
If the district fails to provide the county auditor with the list
of
qualified voters by the required date, the county auditor shall
compile
the list and charge the district for the costs required for its
preparation. The county auditor may not be held responsible
for any
errors in the list.
{+ NEW SECTION. +} Sec. 24.
ELECTIONS--WHEN NOT REQUIRED. (1) No
election shall be held to elect a member of a board, or to fill
the
remainder of an unexpired term which arose from a vacancy on the
board,
if no one or only one person files for the position.
(2) If only one person files for the position,
he or she is
considered to have been elected to the position at the election
that
otherwise would have taken place for the position.
(3) If no one files for the position,
and the upcoming election is
one at which someone would have been elected to fill the expired
term,
the position is treated as vacant at the expiration of the term.
(4) If no one files for the position,
and the upcoming election is
one at which someone would have been elected to fill the remaining
term
of office, the person appointed to fill the vacancy is considered
to
have been elected to the position at the election and serves for
the
remainder of the unexpired term.
{+ NEW SECTION. +} Sec. 25.
ELECTIONS--AUDITOR'S ASSISTANCE--
NOTICE--AUDITOR'S COSTS. (1) The auditor of the county within
which a
district, or the largest portion of a district, is located shall
assist
the district with its elections as provided in this section.
(2) The county auditor shall publish notice
of an election to
create a district, and notice of all special district elections
not
conducted by mail, in a newspaper of general circulation in the
district at least once not more than ten nor less than three days
before the election. The notices shall describe the election
and
indicate the election site or sites in the district and the date
and
times ballots may be cast.
(3) In a district with at least five hundred
qualified voters, the
county auditor shall publish in a newspaper of general circulation
in
the district a notice of the filing period and place for filing
a
declaration of candidacy to become a member of the board.
The auditor
shall publish this notice at least seven days before the closing
of the
filing period. In a district with less than five hundred
qualified
voters, the district shall mail or deliver notice described in
this
subsection to each qualified voter of the district at least seven
days
before the closing of the filing period.
(4) All costs of the county auditor incurred
related to elections
under this chapter shall be reimbursed by the district.
{+ NEW SECTION. +} Sec. 26.
ELECTIONS--AUDITOR TO CONDUCT--
ELECTION BY MAIL. (1) In a district with less than five hundred
qualified voters, the district must contract with the county auditor
to
conduct the special district elections. The county auditor
may conduct
the election by mail.
(2) In a district with at least five hundred
qualified voters, the
district may contract with the county auditor to staff the voting
site
during the election or contract with the county auditor to conduct
the
election by mail. A district with at least five hundred qualified
voters may also choose to conduct its own elections. A district
that
conducts its own elections must enter into an agreement with the
county
auditor, specifying the responsibilities of both parties.
(3) If the county auditor conducts a district
election by mail, the
provisions of chapter 29.36 RCW which govern elections by mail,
except
for the requirements of RCW 29.36.120, shall apply.
{+ NEW SECTION. +} Sec. 27.
ELECTION OFFICIALS--DUTIES--VOTING
HOURS--CHALLENGED BALLOTS--ABSENTEE BALLOTS. For special
district
elections that are not conducted by mail, the board shall appoint
three
voters of the district, who may be members of the board, to act
as
election officials, unless the district contracts with the county
auditor to staff the election site. The election officials
shall
distribute a ballot or ballots to each voter of the district who
arrives at the voting place, during the hours for the election
on the
day of the election, and requests a ballot. The election
officials
shall also provide ballots to those persons arriving at the polling
place during the hours for the election on the day of the election
who
present documents or evidence sufficient to establish their eligibility
to vote. A person arriving at the polling place at the proper
time who
demands a ballot, but who fails to present documents or evidence
that,
in the opinion of the election officials, is sufficient to establish
eligibility to vote, must be given a ballot clearly marked as
"challenged" and must be allowed to vote. Each challenged
ballot must
be numbered consecutively, and a list of such persons and their
ballot
numbers must be made.
The board shall designate those hours
from seven o'clock a.m. to
eight o'clock p.m. during which the election will be held; however,
at
least six consecutive hours must be designated. When the
election is
over, the election officials shall secure the ballots and transport
them to the county auditor's office by noon of the day following
the
election. The auditor may, at his or her discretion, station
at the
election site a deputy auditor or deputy auditors, who shall observe
the election and transport the ballots to the auditor's office.
The
auditor shall count the ballots and certify the count of votes
for and
against each measure and for each candidate appearing on the ballot.
The auditor shall make a separate count of any challenged ballots.
The
auditor shall count a challenged ballot as a normal ballot if
documentation or evidence is supplied to the auditor before four
o'clock p.m. on the day after the election that, in the opinion
of the
auditor, is sufficient to establish the person's eligibility to
vote.
Additionally, voting by absentee
ballot is allowed in every
district. A request for an absentee ballot may be made by
an eligible
voter by mail or in person to the county auditor who supervises
the
special district elections. An absentee ballot shall be provided
to
each voter of a district requesting such a ballot under this section.
A person requesting such a ballot may present information establishing
his or her eligibility to vote in the district. The auditor
shall
provide an absentee ballot to each person requesting an absentee
ballot
who is either included on the list of presumed eligible voters
or who
submits information which, in the auditor's opinion, establishes
his or
her eligibility to vote. The names of persons thus determined
to be
eligible to vote shall be added to the list of presumed eligible
voters
for the appropriate special district. The request for an
absentee
ballot must be made no more than forty-five days before the election.
To be valid, absentee ballots must be postmarked on or before the
day
of the election and mailed to the county auditor.
{+ NEW SECTION. +} Sec. 28.
REFUNDING GENERAL OBLIGATION BONDS.
(1) The board may, by resolution, without submitting the matter
to the
voters of the district, provide for the issuance of refunding general
obligation bonds to refund any outstanding general obligation bonds,
or
any part thereof, at maturity thereof, or before the maturity thereof,
if they are subject to call for prior redemption, or if all of
the
owners thereof consent.
(2) The total cost to the district over
the life of the refunding
bonds or refunding portion of an issue of bonds shall not exceed
the
total cost to the district which the district would have incurred
but
for the refunding over the remainder of the life of the bonds to
be
refunded thereby.
(3) The refunding bonds may be exchanged
for the bonds to be
refunded thereby, or may be sold as the board deems to be in the
best
interest of the district. The proceeds of the sale shall
be used
exclusively for paying, retiring, and canceling the bonds to be
refunded and the interest thereon. The bonds may be of any
form,
including bearer bonds or registered bonds, as provided in RCW39.46.030.
{+ NEW SECTION. +} Sec. 29.
MAINTENANCE OR GENERAL FUND AND
SPECIAL FUNDS--USE OF SURPLUS IN MAINTENANCE OR GENERAL FUND.
If a
district has accumulated money in the maintenance fund or general
fund
of the district in excess of the requirements of that fund, the
board
may, at its discretion, use any of that surplus money for any of
the
following purposes:
(1) Redemption or servicing of outstanding
obligations of thedistrict;
(2) Maintenance expenses of the district;
(3) Construction or acquisition of any
facilities necessary to
carry out the purposes of the district; or
(4) Any other proper district purpose.
{+ NEW SECTION. +} Sec. 30.
MAINTENANCE OR GENERAL FUND AND
SPECIAL FUNDS--DEPOSITS AND INVESTMENTS. Whenever there is
accumulated, in any general or special fund of a district, money
the
disbursement of which is not yet due, the board may, by resolution,
authorize the treasurer to deposit or invest the money in qualified
public depositaries, or to invest the money in any investment permitted
at any time by RCW 36.29.020. However, the county treasurer
may refuse
to invest any district money the disbursement of which will be
required
during the period of investment to meet outstanding obligations
of thedistrict.
{+ NEW SECTION. +} Sec. 31.
DEPOSIT ACCOUNT REQUIREMENTS. The
district shall deposit district money in any account, which may
be
interest-bearing, subject to requirements and conditions prescribed
by
the state auditor. The account must be in the name of the
district.
{+ NEW SECTION. +} Sec. 32.
LOANS FROM MAINTENANCE OR GENERAL
FUNDS TO CONSTRUCTION FUNDS OR OTHER FUNDS. The board may,
by
resolution, authorize and direct a loan or loans from maintenance
funds
or general funds of the district to construction funds or other
funds
of the district, if the loan does not, in the opinion of the board,
impair the ability of the district to operate and maintain its
water
banking facilities.
{+ NEW SECTION. +} Sec. 33.
A new section is added to chapter
90.03 RCW to read as follows:
The water resource management districts
provided for in chapter
90.-- RCW (sections 1 through 32 and 37 through 39 of this act)
are not
subject to the requirements of this chapter if those requirements
conflict with the provisions of chapter 90.-- RCW (sections 1 through
32 and 37 through 39 of this act).
{+ NEW SECTION. +} Sec. 34.
A new section is added to chapter
90.42 RCW to read as follows:
The water resource management districts
provided for in chapter
90.-- RCW (sections 1 through 32 and 37 through 39 of this act)
are not
subject to the requirements of this chapter if those requirements
conflict with the provisions of chapter 90.-- RCW (sections 1 through
32 and 37 through 39 of this act).
{+ NEW SECTION. +} Sec. 35.
A new section is added to chapter
90.44 RCW to read as follows:
The water resource management districts
provided for in chapter
90.-- RCW (sections 1 through 32 and 37 through 39 of this act)
are not
subject to the requirements of this chapter if those requirements
conflict with the provisions of chapter 90.-- RCW (sections 1 through
32 and 37 through 39 of this act).
{+ NEW SECTION. +} Sec. 36.
A new section is added to chapter
90.54 RCW to read as follows:
The water resource management districts
provided for in chapter
90.-- RCW (sections 1 through 32 and 37 through 39 of this act)
are not
subject to the requirements of this chapter if those requirements
conflict with the provisions of chapter 90.-- RCW (sections 1 through
32 and 37 through 39 of this act).
{+ NEW SECTION. +} Sec. 37.
REPORT TO LEGISLATURE. The
department shall report biennially, by December 31st of each even-
numbered year, to the appropriate committees of the legislature
on the
districts formed or sought to be formed under the authority of
this
chapter, the volumes and length of terms of water accepted for
deposit
to and permitted for withdrawal from districts formed, and a general
summary of their funding sources and disposition of revenues andexpenses.
{+ NEW SECTION. +} Sec. 38.
SEVERABILITY. 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.
{+ NEW SECTION. +} Sec. 39.
CAPTIONS NOT LAW. Captions used in
this chapter are not any part of the law.
{+ NEW SECTION. +} Sec. 40.
Sections 1 through 32 and 37 through
39 of this act constitute a new chapter in Title 90 RCW.
--- END ---