2050-S AMH MAST H2794

2050-S AMH MAST H2794.1

SHB 2050 - H AMD 200 WITHDRAWN 3-14-97

By Representative Mastin

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 90.03.380 and 1996 c 320 s 19 are each amended to read as follows:

(1) The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to the land or place upon which the same is used: PROVIDED, HOWEVER, That said right may be transferred to another or to others and become appurtenant to any other land or place of use without loss of priority of right theretofore established if such change can be made without detriment or injury to existing rights. The point of diversion of water for beneficial use or the purpose of use may be changed, if such change can be made without detriment or injury to existing rights. Before any transfer of such right to use water or change of the point of diversion of water or change of purpose of use can be made, any person having an interest in the transfer or change, shall file a written application therefor with the department, and said application shall not be granted until notice of said application shall be published as provided in RCW 90.03.280. If it shall appear that such transfer or such change may be made without injury or detriment to existing rights, the department shall issue to the applicant a certificate in duplicate granting the right for such transfer or for such change of point of diversion or of use. The certificate so issued shall be filed and be made a record with the department and the duplicate certificate issued to the applicant may be filed with the county auditor in like manner and with the same effect as provided in the original certificate or permit to divert water.

(2) If an application for change proposes to transfer water rights from one irrigation district to another, the department shall, before publication of notice, receive concurrence from each of the irrigation districts that such transfer or change will not adversely affect the ability to deliver water to other landowners or impair the financial integrity of either of the districts.

(3) A change in place of use by an individual water user or users of water provided by an irrigation district need only receive approval for the change from the board of directors of the district if the use of water continues within the irrigation district, and when water is provided by an irrigation entity that is a member of a board of joint control created under chapter 87.80 RCW, approval need only be received from the board of joint control if the use of water continues within the area of jurisdiction of the joint board and the change can be made without detriment or injury to existing rights.

(4) Any right represented by an application for a water right for which a permit for water use has not been issued by the time a transfer or change is approved under this section shall not be construed as being injured or detrimentally affected by the transfer or change.

(5) This section shall not apply to trust water rights acquired by the state through the funding of water conservation projects under chapter 90.38 RCW or RCW 90.42.010 through 90.42.070.

Sec. 2. RCW 90.44.100 and 1987 c 109 s 113 are each amended to read as follows:

After an application to, and upon the issuance by the department of an amendment to the appropriate permit or certificate of ground water right, the holder of a valid right to withdraw public ground waters may, without losing his priority of right, construct wells or other means of withdrawal at a new location in substitution for or in addition to those at the original location, or he may change the manner or the place of use of the water: PROVIDED, HOWEVER, That such amendment shall be issued only after publication of notice of the application and findings as prescribed in the case of an original application. Such amendment shall be issued by the department only on the conditions that: (1) The additional or substitute well or wells shall tap the same body of public ground water as the original well or wells; (2) use of the original well or wells shall be discontinued upon construction of the substitute well or wells; (3) the construction of an additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and (4) other existing rights shall not be impaired. The department may specify an approved manner of construction and shall require a showing of compliance with the terms of the amendment, as provided in RCW 90.44.080 in the case of an original permit.

Any right represented by an application for a water right for which a permit for water use has not been issued by the time an amendment is approved under this section shall not be construed as being impaired by the amendment.

NEW SECTION. Sec. 3. A new section is added to chapter 90.03 RCW to read as follows:

(1) In making a determination of impairment:

(a) The availability of water and the effect of granting a water right permit, transfer, change, or amendment are those that exist with the incorporation of the effects of any impoundment to be provided by the applicant under RCW 90.03.255 or 90.44.055 or any other water supply augmentation or mitigation to be provided by the applicant as part of his or her application for a water right permit, transfer, change, or amendment.

(b) The existence of hydraulic continuity between ground water and a surface body of water does not, in itself, constitute the impairment of an existing water right in the surface water body by a proposed permit for a ground water right or an amendment to a ground water right.

(c) The department shall take into consideration seasonal variations in water supply and in the recharge of surface and ground water bodies.

(d) Impairment of an existing water right in a surface body of water by a proposed permit for a ground water right or for an amendment to a ground water right does not exist if the withdrawal of water under the permit or amendment would reduce within one hundred years the supply of water to the surface water body by less than one-tenth of one percent of the annual rate of ground water withdrawal proposed under the permit or amendment. In considering the cumulative effects of multiple applications for such permits and amendments and of ground water rights that are junior to the existing water rights in the surface water body, the department may find impairment by those applications that would, taken in the order of their priority dates, cause a reduction in the supply of water to the surface water body by one-tenth of one percent or more within one hundred years and would, by that reduction, result in the impairment of existing water rights.

(2) As used in this section:

(a) "Determination of impairment" means a determination made by the department as to whether the issuance of a water right permit under this chapter or chapter 90.44 RCW or whether the approval of a transfer, change, or amendment under RCW 90.03.380 or 90.44.100 would injure or impair existing water rights or would conflict with or be detrimental to existing water rights;

(b) "Impairment" means an injury or impairment of existing water rights or a conflict with or detriment to existing water rights; and

(c) "Existing water rights" includes, but is not limited to, rights to the diversion, withdrawal, storage, and use of water existing before a determination of impairment, instream or base flows set by the department by rule before a determination of impairment, and any flows determined to be necessary by the department under RCW 75.20.050.

(3) The rule of impairment provided by subsection (1)(d) of this section is provided for water allocation decisions made by the department and is provided to adjust for the uncertainty that is inherent in evaluating the effects of proposed ground water withdrawals on surface water bodies. It does not provide a standard for reviewing any claim made by a person with a senior water right in superior court or in an appeal of a superior court decision that the person's senior water right is impaired or injured by the use of any junior water right or that the use of a junior water right conflicts with or is detrimental to the use of the person's senior water right. A decision by a superior court regarding any claim of impairment of existing water rights shall be made based on the preponderance of the evidence presented. The superior court shall consider any such claim de novo and shall not grant deference to determinations that may have been made by the department or by the pollution control hearings board regarding such a claim.

NEW SECTION. Sec. 4. A new section is added to chapter 43.21B RCW to read as follows:

In appeals involving a decision or order of the hearings board regarding a determination of impairment made by the department of ecology or regarding the impairment of existing water rights, the appeal to superior court shall be de novo. A decision by a superior court regarding a determination of impairment or the impairment of existing water rights shall be made based on the preponderance of the evidence presented. The superior court shall not grant deference to a determination made by the department of ecology or by the pollution control hearings board regarding such a determination or such impairment. Appellate review of a decision of the superior court may be sought as in other civil cases.

As used in this section, "determination of impairment," "impairment," and "existing water rights" have the meanings provided by section 3 of this act."

Correct the title.