AN ACT Relating to water rights; amending RCW 90.44.070, 90.14.140, and 90.44.060; creating a new section; and adding new sections to chapter 90.44 RCW.

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

NEW SECTION. Sec. 1. The legislature finds that growth of the state's population and economy places increasingly greater demands on available water resources, including this state's ground water supplies. The legislature also finds that chapter 90.44 RCW, popularly known as the Ground Water Code of 1945, protects the public welfare by providing an orderly system of rights to the beneficial use of water based upon the "first in time is first in right" principle of the prior appropriation doctrine. The purpose of sections 2 and 3 of this act is to provide remedies to protect the right of a holder of a senior right to ground water to a safe sustaining yield of water.

NEW SECTION. Sec. 2. A new section is added to chapter 90.44 RCW to read as follows:

(1) The remedies to protect the right of the holder of a senior water right to a safe sustaining yield of water include protection of the availability of water in the well or wells used to exercise that senior water right, without the wells or withdrawal works being significantly modified. That availability is protected against interruption or other interference caused by either: (a) The water works of, or the water withdrawal activities of, a person or persons exercising junior rights to ground water; or (b) any other activities of a person or persons that do not directly involve the exercise of a more senior right to water. Junior rights to ground water are those established subsequently to a senior right under the prior appropriation doctrine upon which this chapter is based.

(2) The holder of a senior water right is entitled to adequate compensation whenever the water works or water withdrawal activities of a person or persons exercising junior rights to ground water cause such an interruption or interference in that availability of water. Adequate compensation for the loss of that availability will be made if the holder of the senior right is provided with:

(a) An amount equivalent to the increased costs reasonably incurred by or reasonably to be incurred by the holder of the senior water right in securing and using water, to the full extent of the senior right, as a result of losing the availability protected by subsection (1) of this section. The full extent of the senior right includes any conditions that applied to the right such as the quantity and quality of the water, the location of use, and time of use;

(b) The delivery of water to the holder of the senior right. To qualify as compensation, the water delivered must be of a quantity equal to and a quality equivalent to that of the senior right. The delivery must also be under such conditions, including but not limited to timing and location, as applied to the senior right without increased costs being incurred by the senior rightholder; or

(c) The payment of just compensation pursuant to the exercise of eminent domain if the holder of the junior rights has been granted the power of eminent domain.

(3) In lieu of the forms of compensation provided by this section, the holder of the senior right to ground water may freely enter contractual agreements establishing other compensation.

(4) In any civil action brought under this section, if the court believes the legal remedies are inadequate or excessively harsh, it may provide such equitable relief as it believes appropriate. The court shall also provide such emergency relief as is appropriate for the protection of ground water rights.

(5) If, in considering an application for a permit for the appropriation of ground water, the department of ecology determines that the withdrawal of water under the permit would result in an interruption or interference for which the holder of a senior right has the right to the remedy of compensation under this section, the department may nonetheless issue the permit. However, the department shall issue an order concurrently with the permit prohibiting the construction of any water works associated with the permit or any use of the permit until such time as compensation has been provided in accordance with subsections (2), (3), or (4) of this section. The department has no power to determine the amount of compensation required under this section.

All permits issued and all rights perfected under this chapter after the effective date of this section are subject to subsections (1) through (4) of this section. The department shall issue an order to stop the exercise of a junior right whenever it finds that sufficient information exists to show that exercising the right has resulted in or would result in such an interruption or interference in the availability of water that a holder of a senior right has the right to the remedy of adequate compensation under this section.

(6) The statutory remedies provided under this section apply only against interruption or interference caused by the exercise of junior water rights for which permits have been issued after the effective date of this section or which have been otherwise perfected after the effective date of this section. These statutory remedies may not be applied against interruption or interference caused by the exercise of water rights existing prior to the effective date of this section. Nothing in this section expands, prohibits, or restricts in any manner whatsoever any powers of the judiciary to devise, provide for, and enforce remedies designed to protect senior water rights existing prior to the effective date of this section from interruption or interference caused by the exercise of junior water rights also existing prior to the effective date of this section.

Sec. 3. Section 7, chapter 263, Laws of 1945 and RCW 90.44.070 are each amended to read as follows:

No permit shall be granted for the development or withdrawal of public ground waters beyond the capacity of the underground bed or formation in the given basin, district, or locality to yield such water within a reasonable or feasible pumping lift in case of pumping developments, or within a reasonable or feasible reduction of pressure in the case of artesian developments. ((~~The supervisor of water resources~~)) Except as provided otherwise in section 2 of this 1985 act, the director of ecology shall have the power to determine whether the granting of any ((~~such~~)) permit will injure or damage any vested or existing right or rights under prior permits and may in addition to the records of his office, require further evidence, proof, and testimony before granting or denying any such permits.

The granting of a permit by the director does not relieve the recipient of the permit of any liability for injuring or damaging vested or existing rights to water.

In multi-aquifer systems, the director may require, as permit conditions, the casing and sealing of wells or other construction techniques to: (1) Protect the use of the uppermost aquifer or aquifers of the system by persons with senior rights to ground water, or (2) protect the use of waters from the uppermost aquifer or aquifers for future domestic or similar uses, traditionally involving shallower wells, that the director finds to be vital for the support of future development of the overlying land.

NEW SECTION. Sec. 4. A new section is added to chapter 90.44 RCW to read as follows:

(1) This section contains remedies designed to protect the holder of a ground water right against activities that cause damage or injury by adversely affecting the quality of the water for the use or uses to which the ground water right pertains. Any holder of a ground water right who sustains any damage or injury, whether to property or person, which is caused by activities that decrease the quality of the water for the use or uses to which the ground water right pertains, shall be entitled to recover full compensation for such damage or injury from the person or persons responsible for or conducting the activities. This subsection shall not affect or impair any other rights or remedies, whether prescribed by statute or case law, to recover compensation or obtain other relief for damage or injury caused by the impairment of water quality.

(2) In the case of saltwater intrusion caused by the overuse of a freshwater aquifer, the department shall preserve the rights of senior appropriators to fresh water by reducing the withdrawals authorized for the holders of junior water rights in a manner consistent with the prior appropriation system of rights.

NEW SECTION. Sec. 5. A new section is added to chapter 90.44 RCW to read as follows:

In any civil action brought under section 2 or 4 of this act, the court may award attorney's fees to the prevailing party. The amount of fees awarded shall be reasonable and shall be fixed by the court.

NEW SECTION. Sec. 6. A new section is added to chapter 90.44 RCW to read as follows:

Any person who provides compensation under section 2 or 4 of this act shall provide notice thereof to the department of ecology. The notice shall be on a form prescribed by the department and shall be sufficient to show the amount and nature of the compensation and any change in the water rights involved.

Sec. 7. Section 14, chapter 233, Laws of 1967 and RCW 90.14.140 are each amended to read as follows:

(1) For the purposes of this chapter "sufficient cause" shall be defined as the nonuse of all or a portion of the water by the owner of a water right for a period of five or more consecutive years where such nonuse occurs as a result of:

((~~(1)~~)) (a) Drought, or other unavailability of water;

((~~(2)~~)) (b) Active service in the armed forces of the United States during military crisis;

((~~(3)~~)) (c) Nonvoluntary service in the armed forces of the United States;

((~~(4)~~)) (d) The operation of legal proceedings;

((~~(5)~~)) (e) Federal laws imposing land or water use restrictions, or acreage limitations, or production quotas;

(f) The use of water delivered as compensation under section 2(2) of this 1985 act so long as the nonused water right is not transferred separately from the land to which it is attached.

(2) Notwithstanding any other provisions of this chapter, there shall be no relinquishment of any water right:

((~~(1)~~)) (a) If such right is claimed for power development purposes under chapter 90.16 RCW and annual license fees are paid in accordance with chapter 90.16 RCW, or

((~~(2)~~)) (b) If such right is used for a standby or reserve water supply to be used in time of drought or other low flow period so long as withdrawal or diversion facilities are maintained in good operating condition for the use of such reserve or standby water supply, or

((~~(3)~~)) (c) If such right is claimed for a determined future development to take place either within fifteen years of the effective date of this act, or the most recent beneficial use of the water right, whichever date is later, or

((~~(4)~~)) (d) If such right is claimed for municipal water supply purposes under chapter 90.03 RCW, or

((~~(5)~~)) (e) If such waters are not subject to appropriation under the applicable provisions of RCW 90.40.030 as now or hereafter amended.

Sec. 8. Section 6, chapter 263, Laws of 1945 and RCW 90.44.060 are each amended to read as follows:

Applications for permits for appropriation of underground water shall be made in the same form and manner provided in RCW 90.03.250 through 90.03.340, as amended, the provisions of which sections, except as provided to the contrary in section 2 of this 1985 act, are hereby extended to govern and to apply to ground water, or ground water right certificates and to all permits that shall be issued pursuant to such applications, and the rights to the withdrawal of ground water acquired thereby shall be governed by RCW 90.03.250 through 90.03.340, inclusive: PROVIDED, That each application to withdraw public ground water by means of a well or wells shall set forth the following additional information: (1) the name and post office address of the applicant; (2) the name and post office address of the owner of the land on which such well or wells or works will be located; (3) the location of the proposed well or wells or other works for the proposed withdrawal; (4) the ground water area, sub-area, or zone from which withdrawal is proposed, provided the supervisor of water resources has designated such area, sub-area, or zone in accord with RCW 90.44.130; (5) the amount of water proposed to be withdrawn, in gallons a minute and in acre feet a year, or millions of gallons a year; (6) the depth and type of construction proposed for the well or wells or other works: AND PROVIDED FURTHER, That any permit issued pursuant to an application for constructing a well or wells to withdraw public ground water may specify an approved type and manner of construction for the purposes of preventing waste of said public waters and of conserving their head.

NEW SECTION. Sec. 9. 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.