Chapter 43.83B RCW

WATER SUPPLY FACILITIES

Sections

43.83B.005Transfer of duties to the department of health.
AGRICULTURAL WATER SUPPLY FACILITIES
43.83B.200Deposit of proceeds from repayment of loans, interest, gifts, grants, etc., in state and local improvements revolving account-water supply facilitiesUse.
43.83B.210Loans or grants from department of ecologyAuthorizedLimitations.
43.83B.220Contractual agreements.
43.83B.230Provision for recreation, fish and wildlife enhancement and other public benefits.
EMERGENCY WATER WITHDRAWAL AND FACILITIES
43.83B.300Legislative findingsGeneral obligation bonds authorizedIssuance, termsAppropriation required.
43.83B.336Civil penalties.
43.83B.345Rates of charges for waterPayment into bond redemption fundGrants and loansContracts.
43.83B.360State emergency water projects revolving accountProceeds from sale of bonds.
43.83B.380Appropriations to department of healthAuthorized projectsConditions.
43.83B.385Appropriations to department of ecologyAuthorized projectsFindings.
43.83B.400Drought conditionsDefinedIntent.
43.83B.405Drought conditionsWithdrawals and diversionsOrders, procedure.
43.83B.410Drought conditionsWithdrawals and diversionsOrders, authority granted.
43.83B.415Drought conditionsLoans and grants.
43.83B.420Rules.
43.83B.425ApplicabilityConstruction.
43.83B.430State drought preparedness account.
43.83B.901Severability1977 ex.s. c 1.


Transfer of duties to the department of health.

The powers and duties of the department of social and health services under this chapter shall be performed by the department of health.

NOTES:

Effective dateSeverability1989 1st ex.s. c 9: See RCW 43.70.910 and 43.70.920.



Deposit of proceeds from repayment of loans, interest, gifts, grants, etc., in state and local improvements revolving account-water supply facilitiesUse.

The proceeds from repayment of any loans made for agricultural water supply facilities and the interest earned from such loans, any gifts, grants, or other funds provided to the state for agricultural water supply facilities, and any interest earned on the interim investment of such funds or proceeds shall be deposited in the state and local improvements revolving account-water supply facilities and shall be used exclusively for agricultural water supply facilities.



Loans or grants from department of ecologyAuthorizedLimitations.

The department of ecology is authorized to make loans or grants or combinations thereof from funds under *RCW 43.83B.010 through 43.83B.110 to eligible public bodies as defined in *RCW 43.83B.050 for rehabilitation or betterment of agricultural water supply facilities, and/or construction of agricultural water supply facilities required to develop new irrigated lands. The department of ecology may make such loans or grants or combinations thereof as matching funds in any case where federal, local, or other funds have been made available on a matching basis. A loan or combination loan and grant shall not exceed fifty percent of the approved eligible project cost for any single proposed project. Any grant or grant portion of a combination loan and grant from funds under *RCW 43.83B.010 through 43.83B.110 for any single proposed project shall not exceed fifteen percent of the eligible project costs: PROVIDED, That the fifteen percent limitation established herein shall not be applicable to project commitments which the director or deputy director of the state department of ecology made to the bureau of reclamation of the United States department of interior for providing state funding at thirty-five percent of project costs during the period between August 1, 1974, and June 30, 1975.

NOTES:

*Reviser's note: RCW 43.83B.010 through 43.83B.110 were decodified pursuant to 2015 1st sp.s. c 4 § 23.
Severability1989 c 171: See note following RCW 43.83B.400.
Severability1987 c 343: See note following RCW 43.83B.300.



Contractual agreements.

In addition to the powers granted by RCW 43.83B.210, the director of the department of ecology or his or her designee is authorized to make contractual agreements in accordance with provisions of this chapter on behalf of the state of Washington. Contractual agreements shall include provisions to secure such loans, and shall assure the proper and timely payment of said loans or loan portions of combination loans and grants.

NOTES:

Severability1989 c 11: See note following RCW 9A.56.220.



Provision for recreation, fish and wildlife enhancement and other public benefits.

In the course of considering applications under this chapter, the department of ecology shall make known to other state agencies possibilities which may arise to provide public benefits such as recreation or fish and wildlife enhancement in connection with proposed projects. Such agencies, including the department of ecology, are authorized to participate in said projects provided agency funds are made available to pay the full cost of their participation.



Legislative findingsGeneral obligation bonds authorizedIssuance, termsAppropriation required.

The legislature finds that the fundamentals of water resource policy in this state must be reviewed by the legislature to ensure that the water resources of the state are protected and fully utilized for the greatest benefit to the people of the state of Washington. The legislature further finds that it is necessary to provide the department of ecology with emergency powers to authorize withdrawals of public surface and groundwaters, including dead storage within reservoirs, on a temporary basis, and construction of facilities in relation thereto, in order to alleviate emergency water supply conditions arising from the drought forecast for the state of Washington during 1977 and during 1987 through 1989.
The legislature further finds that there is a continuing water supply shortage in many areas of the state and that there is an urgent need to assure the survival of irrigated crops and of the state's fisheries.
The legislature further finds that in addition to water storage facilities or other augmentation programs, improved efficiency of water use could provide an important new supply of water in many parts of the state with which to meet future water needs and that improved efficiency of water use should receive greater emphasis in the management of the state's water resources.
In order to study the fundamentals of water resource policy of the state and to provide needed moneys for the planning, acquisition, construction, and improvement of water supply facilities and for other appropriate measures to assure the survival of irrigated crops and/or the state's fisheries to alleviate emergency water supply conditions arising from droughts occurring from time to time in the state of Washington, and to carry out a comprehensive water use efficiency study for the state of Washington, the state finance committee is authorized to issue general obligation bonds of the state of Washington in the sum of eighteen million dollars, or so much thereof as may be required to finance such projects, and all costs incidental thereto. No bonds authorized by this section and *RCW 43.83B.360 through 43.83B.375 shall be offered for sale without prior legislative appropriation, and these bonds shall be paid and discharged within thirty years of the date of issuance in accordance with Article VIII, section 1 of the state Constitution.

NOTES:

Reviser's note: *(1) RCW 43.83B.365 through 43.83B.375 were decodified pursuant to 2015 1st sp.s. c 4 § 23.
(2) This section was amended by 1988 c 45 § 1, 1988 c 46 § 2, and by 1988 c 47 § 1, each without reference to the other. All amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
Application1988 c 47: "Nothing in this act shall apply to or interfere with the processing or issuance of water rights in connection with the Yakima River Basin Water Enhancement Project." [ 1988 c 47 § 8.]
Severability1988 c 47: "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." [ 1988 c 47 § 9.]
Severability1987 c 343: "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." [ 1987 c 343 § 11.]
Severability1979 ex.s. c 263: "If any provision of this 1979 amendatory 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." [ 1979 ex.s. c 263 § 5.]



Civil penalties.

See RCW 90.03.600.



Rates of charges for waterPayment into bond redemption fundGrants and loansContracts.

(1) The department of ecology shall, by rule, establish rates of charges for all waters delivered from such facilities as constructed by the department with funds provided in RCW 43.83B.385 (2) or (3). Where the department provides water to public or municipal corporations or other governmental bodies having authority to distribute water, the payment for the water may be made pursuant to contract over a period not exceeding twenty-five years from the date of delivery. In all other cases, the department shall obtain payment for waters prior to its delivery to a purchaser. All payments received shall be deposited into the state emergency water projects bond redemption fund of 1977.
(2) Public bodies, eligible to obtain funds through grants or loans or combinations thereof under the provisions of *RCW 43.83B.300 through 43.83B.345 and 43.83B.210 as now or hereafter amended, are authorized to enter into contracts with the department of ecology for the purpose of repaying loans authorized by RCW 43.83B.380 and 43.83B.385 and for the purpose of purchasing water under this section.
(3) The department of ecology is authorized to enter into appropriate contracts to ensure effective delivery of water and the operation and maintenance of facilities constructed pursuant to *RCW 43.83B.300 through 43.83B.385, 43.83B.901, and 43.83B.210.

NOTES:

*Reviser's note: RCW 43.83B.305 through 43.83B.330 and 43.83B.340 through 43.83B.344 were repealed by 1989 c 171 § 12. RCW 43.83B.355 and 43.83B.365 through 43.83B.375 were decodified pursuant to 2015 1st sp.s. c 4 § 23.



State emergency water projects revolving accountProceeds from sale of bonds.

The proceeds from the sale of bonds authorized by RCW 43.83B.300, and * 43.83B.355 through 43.83B.375 shall be deposited in the state emergency water projects revolving account, hereby created in the state treasury, and shall be used exclusively for the purposes specified in RCW 43.83B.300, and * 43.83B.355 through 43.83B.375 and for the payment of expenses incurred in the issuance and sale of such bonds. During the 2009-2011 fiscal biennium, the legislature may transfer from the state emergency water projects revolving account to the state general fund such amounts as reflect the excess fund balance of the account.

NOTES:

*Reviser's note: RCW 43.83B.355 and 43.83B.365 through 43.83B.375 were decodified pursuant to 2015 1st sp.s. c 4 § 23.
Effective date2009 c 564: See note following RCW 2.68.020.
Effective datesSeverability1991 sp.s. c 13: See notes following RCW 18.08.240.
Effective date1985 c 57: See note following RCW 18.04.105.



Appropriations to department of healthAuthorized projectsConditions.

There is hereby appropriated to the department of health the sum of nine million seven hundred thirty-seven thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1977, from the general fundstate and local improvements revolving account-water supply facilities for the purposes authorized in *RCW 43.83B.300 through 43.83B.345 and 43.83B.210 as now or hereafter amended relating to the emergency water conditions arising from the drought forecast for the summer and fall of 1977 affecting municipal and industrial water supply distribution facilities. Prior to the expenditure of funds for projects approved by the department, the department shall file a listing of the approved projects with the senate ways and means committee and the house appropriations committee.
(2) There is hereby appropriated to the department of health the sum of five million three hundred twenty-seven thousand dollars, or so much thereof as may be necessary, for the biennium ending June 30, 1977, from the general fundstate and local improvements revolving account-water supply facilities to be expended for municipal and industrial water supply and distribution facility projects for which applications are in progress on March 25, 1977 and have arisen from the drought forecast for the summer and fall of 1977. Prior to the expenditure of funds for projects approved by the department, the department shall file a listing of the approved projects with the senate ways and means committee and the house appropriations committee.
The municipal and industrial water supply and distribution facilities receiving funds from the appropriations contained in this section shall comply with the eligible costs criteria, health and design standards, and contract performance requirements of the municipal and industrial funding program under chapter 43.83B RCW. All projects shall be evaluated by applying the said chapter's evaluation and prioritization criteria to insure that only projects related to water shortage problems receive funding. The projects funded shall be limited to those projects providing interties with adjacent utilities, an expanded source of supply, conservation projects which will conserve or maximize efficiency of the existing supply, or a new source of supply. No obligation to provide a grant for a project authorized under this section shall be incurred after June 30, 1977.

NOTES:

*Reviser's note: RCW 43.83B.305 through 43.83B.330 and 43.83B.340 through 43.83B.344 were repealed by 1989 c 171 § 12.



Appropriations to department of ecologyAuthorized projectsFindings.

(1) There is hereby appropriated to the department of ecology for the biennium ending June 30, 1977, from the state emergency water projects revolving account in the general fund, the sum of seven million dollars, or so much thereof as may be necessary, which shall be expended for the financing of the following agricultural water supply and distribution projects from surface water sources: Kennewick Irrigation District; Kittitas Reclamation District; Stemilt Irrigation District; Wenatchee Heights Reclamation District; and the Wenatchee Reclamation District.
(2) There is hereby appropriated to the department of ecology for the biennium ending June 30, 1977, from the state emergency water projects revolving account in the general fund, the sum of five million dollars, or so much thereof as may be necessary, which shall be expended for the financing and construction of agricultural water supply and distribution projects from groundwater sources primarily in the Moxee-Ahtanum and Park Creek aquifer areas.
(3) There is hereby appropriated to the department of ecology for the biennium ending June 30, 1977, from the state emergency water supply revolving account in the general fund the sum of six million dollars, or so much thereof as may be necessary, which shall be expended for water withdrawal projects relating to ground and surface waters as provided for in subsections (1) and (2) of this section and for the financing and construction of agricultural water supply and distribution projects from ground and surface water sources which may become required by public bodies other than those identified in this section as a result of the drought forecast for the summer and fall of 1977.
The department may expend funds from the appropriations contained in subsections (1), (2), and (3) of this section to make loans or combinations of loans and grants to public bodies as defined in *RCW 43.83B.050. The grant portion of a combination loan and grant to a public body for any project shall not exceed fifteen percent of the total amount received by such project under this section.
The department may expend funds from the appropriations contained in subsections (1), (2), and (3) of this section to make loans or combinations of loans and grants to public bodies as defined in *RCW 43.83B.050 to satisfy the matching requirements of RCW 43.83B.210 as now or hereafter amended.
Prior to the funding of any agriculture projects not specifically set forth in this section the department must make a formal finding that: An emergency water shortage condition exists; the project proposed for funding will alleviate the water shortage; the public body recipient of any funds has reasonable capability to repay the loan involved; and the water from the project will be used for a beneficial purpose as a substitute for water not available due to drought conditions.

NOTES:

*Reviser's note: RCW 43.83B.050 was decodified pursuant to 2015 1st sp.s. c 4 § 23.



Drought conditionsDefinedIntent.

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.

NOTES:

Severability1989 c 171: "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." [ 1989 c 171 § 14.]



Drought conditionsWithdrawals and diversionsOrders, procedure.

(1) 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, pursuant to 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. Prior to the issuance of an order, the department shall (a) consult with 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), and (b) obtain the written approval of the governor. Orders issued under this section shall be deemed orders for the purposes of chapter 34.05 RCW.
(2) Any order issued under subsection (1) 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) The provisions of subsection (2) of this section do not preclude the issuance of more than one order under subsection (1) 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.

NOTES:

Severability1989 c 171: See note following RCW 43.83B.400.



Drought conditionsWithdrawals and diversionsOrders, authority granted.

Upon the issuance of an order under RCW 43.83B.405, the department of ecology is empowered to:
(1)(a) Authorize emergency withdrawal of public surface and ground waters, including dead storage within reservoirs, on a temporary basis and authorize associated physical works which may be either temporary or permanent. The termination date for the authority to make such an emergency withdrawal may not be later than the termination date of the order issued under RCW 43.83B.405 under which the power to authorize the withdrawal is established. The department of ecology may issue such withdrawal authorization when, after investigation and after providing appropriate federal, state, and local governmental bodies 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 the maintenance of fisheries requirements, and (B) to protect federal and state interests including, among others, power generation, navigation, and existing water rights;
(b) All 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)(iii) of this subsection. Domestic and irrigation uses of public surface and ground waters shall be given priority in determining "beneficial uses." 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, 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, 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, Yakima county superior court number 77-2-01484-5 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 activities associated with implementing the emergency drought program of this chapter.
(4) Revise the drought contingency plan previously developed by the department; and
(5) Acquire needed emergency drought-related equipment.

NOTES:

Severability1989 c 171: See note following RCW 43.83B.400.



Drought conditionsLoans and grants.

(1) The department of ecology is authorized to make loans, grants, or combinations of loans and grants from emergency agricultural water supply funds when necessary to provide water to alleviate emergency drought conditions in order to ensure the survival of irrigated crops and the state's fisheries. For the purposes of this section, "emergency agricultural water supply funds" means funds appropriated from the state emergency water projects revolving account created under RCW 43.83B.360. The department of ecology may make the loans, grants, or combinations of loans and grants as matching funds in any case where federal, local, or other funds have been made available on a matching basis. The department may make a loan of up to ninety percent of the total eligible project cost or combination loan and grant up to one hundred percent of the total single project cost. The grant portion for any single project shall not exceed twenty percent of the total project cost except that, for activities forecast to have fifty percent or less of normal seasonal water supply, the grant portion for any single project or entity shall not exceed forty percent of the total project cost. No single entity shall receive more than ten percent of the total emergency agricultural water supply funds available for drought relief. These funds shall not be used for nonagricultural drought relief purposes unless there are no other capital budget funds available for these purposes. In any biennium the total expenditures of emergency agricultural water supply funds for nonagricultural drought relief purposes may not exceed ten percent of the total of such funds available during that biennium.
(2)(a) Except as provided in (b) of this subsection, after June 30, 1989, emergency agricultural water supply funds, including the repayment of loans and any accrued interest, shall not be used for any purpose except during drought conditions as determined under RCW 43.83B.400 and 43.83B.405.
(b) Emergency agricultural water supply funds may be used on a one-time basis for the development of procedures to be used by state governmental entities to implement the state's drought contingency plan.

NOTES:

Severability1989 c 171: See note following RCW 43.83B.400.



Rules.

The department shall adopt such rules as are necessary to ensure the successful implementation of this chapter.

NOTES:

Severability1989 c 171: See note following RCW 43.83B.400.



ApplicabilityConstruction.

Nothing in this chapter shall:
(1) Authorize any interference whatsoever with existing water rights;
(2) Authorize the establishment of rights to withdrawal of waters of a permanent nature or of rights with any priority;
(3) Authorize the establishment of a water right under RCW 90.03.250 or 90.44.060;
(4) Preclude any person from filing an application pursuant to RCW 90.03.250 or 90.44.060.

NOTES:

Severability1989 c 171: See note following RCW 43.83B.400.



State drought preparedness account.

The state drought preparedness account is created in the state treasury. All receipts from appropriated funds designated for the account and funds transferred from the state emergency water projects revolving account must be deposited into the account. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for drought preparedness. During the 2009-2011 fiscal biennium, the legislature may transfer from the state drought preparedness account to the state general fund such amounts as reflect the excess fund balance of the account. For the 2015-2017 fiscal biennium, the account may also accept revenue collected from emergency drought well-related water service contracts and may be used for drought response.

NOTES:

Effective date2016 sp.s. c 36: See note following RCW 18.20.430.
Effective date2011 c 5: See note following RCW 43.79.487.
SeverabilityEffective date2002 c 371: See notes following RCW 9.46.100.
Effective date1999 c 379: See note following RCW 79A.15.040.



Severability1977 ex.s. c 1.

If any provision of this 1977 amendatory 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.