EXPEDITED RULES
Title of Rule: Repeal of a section of the water resources program for the Walla Walla River Basin, WRIA 32, chapter 173-532 WAC, WAC 173-532-085.
Purpose: The Columbia-Snake Rivers Irrigators Association filed a lawsuit challenging aspects of the rule and the rule-making process. Legislation passed in the 2001 session has made the rule essentially moot. Ecology has decided to repeal the section because the rule is no longer applicable and because repeal will avoid continuing litigation.
Statutory Authority for Adoption: RCW 34.05.354 (2)[(1)](c).
Summary: Ecology adopted WAC 173-532-085 in 1999 to provide a means for processing applications to change or transfer water rights ahead of new applications. This was done by creating a separate "line" for change/transfer applications, based on those application proposals meeting certain criteria. One of the components of the rule allowed prioritizing proposals which included enhancements to the natural environment. In 2000, ecology was sued by the Columbia-Snake River Irrigators Association, which asserted that the department did not have the authority to impose these requirements. The state legislature subsequently passed a water bill in the 2001 session which created a statutory basis for processing new applications and change/transfer applications in separate lines. As the rule is no longer applicable, ecology has agreed to repeal WAC 173-532-085 to end the litigation.
Reasons Supporting Proposal: WAC 173-532-085 is no longer applicable. ESHB 1832, passed by the 2001 legislature and signed by the governor, includes a provision allowing applications for new water rights and those for changes to existing water rights to be processed in separate lines. Although WAC 173-532-085 includes a means for prioritizing competing change applications, it is embedded in the overall approach for establishing two lines and presumably could not be applied to competing change applications in the separate line for change applications established by the new legislation.
Name of Agency Personnel Responsible for Drafting: Repeal - no draft language; Implementation and Enforcement: Not applicable.
Name of Proponent: Washington State Department of Ecology, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Ecology adopted WAC 173-532-085 in 1999 to provide a means for processing applications to change or transfer water rights ahead of new applications. This was done by creating a separate "line" for change/transfer applications, based on those application proposals meeting certain criteria. One of the components of the rule allowed prioritizing proposals which included enhancements to the natural environment. In 2000, ecology was sued by the Columbia-Snake River Irrigators Association, which asserted that the department did not have the authority to impose these requirements. However, the 2001 legislature subsequently passed, and the governor signed, ESHB 1832, the governor's "water bill." This legislation includes a provision allowing applications for new water rights and those for transfers of or changes to existing water rights to be processed in separate lines. Although WAC 173-532-085 includes a means for prioritizing competing change applications, it is embedded in the overall approach for establishing two lines and presumably could not be applied to competing change applications in the separate change/transfer application line established by the new legislation. Consequently, because WAC 173-532-085 is no longer applicable, ecology has agreed to an expedited repeal of the section to remove the basis of the litigation.
Proposal Changes the Following Existing Rules: Please see
above.
THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THE USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Jerry Thielen, Regulatory Affairs Manager, Washington State Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600 , AND RECEIVED BY October 1, 2001.
July 31, 2001
Joe Stohr
Program Manager
Water Resources Program