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2003 Senate Bill 5028
Introduced by Sen. Bob Morton, (R - Kettle Falls) (R) on January 13, 2003
To clarify the state's authority to regulate water pollution. The bill states that the exercise of any water right to withdraw or divert water does not constitute "pollution." The bill also stipulates that the department must rely solely on its specifically granted authority under chapters 90.03, 90.14, and 90.44 RCW to regulate any claim, permit, or certificate to withdraw or divert water. See also Companion HB 1534.   Official Text and Analysis.
Referred to the Senate Natural Resources, Energy and Water Committee on January 13, 2003
Testimony in support offered in the Senate on February 6, 2003
By Senator Morton; William Hahn, PUD Association Water Committee and Kitsap County PUD; Mike Kayser, citizen; Tom Myrum, Washington Water Resources Association; Darryll Olson, Columbia-Snake River Irrigators Association; Jim Halstrom, Washington State Horticultural Association; Chris Cheney, Washington State Dairy Federation, Washington Cattlemen's Association, Washington Fryer Commission; Hertha Lund, Washington Farm Bureau; Toni McKinley, Washington State Grange; Scott Hazlegrove, WA Association of Sewer and Water Districts; Kathleen Collins, WA Water Policy Alliance. They testifed that a water right is independent of water quality concerns--water quantity and quality issues are separate; the bill simply clarifies the essence of current law, and affords more certainty to water rights; the Department of Ecology's linking of current water quantity and water quality law is incorrect; the bill does not restrict the effect of the U.S. Supreme Court ruling establishing that states may regulate water quantity as a condition of water quality certification under the federal Clean Water Act, but clarifies that federal water quality laws should not be used to limit a use of water; unless the law is clarified, third party enforcement actions may compel the state to consider water quantity limitations as part of water quality review.
Testimony in opposition offered in the Senate on February 6, 2003
By Nancy Rust, Center for Environmental Law and Policy; Mike Moran, Center for Environmental Law and Policy and Samish Indian Nation; Denise Smith, League of Women Voters; James Waldo, advisor to Governor Locke; Josh Baldi, Washington Environmental Council; Richard Reich and Steve Wehrli, Muckleshoot Tribe; Kevin Lyon, Northwest Indian Fisheries Commission; and Dawn Vyvyan, Yakima Indian Nation. They testifed that Water quantity and quality issues are linked; temperature can increase if water withdrawals cause flows to diminish, harming fish; the bill may restrict the effect of the U.S. Supreme Court ruling establishing that states may regulate water quantity as a condition of water quality certification under the federal Clean Water Act; paramount water rights of Indian tribes should be recognized.
Substitute offered in the Senate on February 6, 2003
To clarify that withdrawal or diversion of water pursuant to water rights granted under any of three legal sources (state surface or groundwater codes or claims registry provisions) does not constitute "pollution" as defined in state water pollution control law administered by DOE.
The substitute passed by voice vote in the Senate on February 6, 2003
Referred to the Senate Rules Committee on February 7, 2003
To clarify the state's authority to regulate water pollution.
Received in the House on March 15, 2003
Referred to the House Agriculture & Natural Resources Committee on March 15, 2003
Amendment offered in the House on April 4, 2003
To replace all provisions with: (1) a requirement for the Department of Ecology (DOE) to establish water use is unauthorized under the water resources statutes before exercising authority under the water pollution control statutes; (2) authority for the DOE to condition water quality certifications for federal hydropower licenses to ensure water quality standards are met and adequate stream flows are maintained; and (3) amendment of the penalty provisions in the surface water code to authorize penalties ranging from $100 to $10,000 per day based on a consideration of factors and the sequence of enforcement actions in the water code.
The amendment passed by voice vote in the House on April 4, 2003
Referred to the House Rules Committee on April 4, 2003
The bill did not pass both chambers during the 2003 regular session, so the bill automatically returned to the Senate Rules Committee when the regular 105-day session adjourned on April 27, 2003.
Received in the Senate on June 5, 2003
For consideration during the 30-day special session.
Amendment offered in the Senate on June 5, 2003
To establish conditions under which the Department of Ecology (DOE) may use voluntary, incentive-based methods to meet water quality standards; specify several DOE authorities regarding water quality certifications for federally licensed hydropower projects; and increase the water code's maximum civil penalties from $100 per day to $5,000 per day.
The amendment passed by voice vote in the Senate on June 5, 2003
Received in the House on June 10, 2003
Clarifying the state's authority to regulate water pollution.
Signed by Gov. Gary Locke on June 20, 2003
To clarify the state's authority to regulate water pollution.

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