5703-S.E AMH CHAN H5560.3

5703-S.E AMH CHAN H5560.3

ESSB 5703 - H AMD 1182 ADOPTED 3-10-98

By Representative Chandler

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. (1) If a person placed surface or ground water to beneficial use before January 1, 1993, for irrigation, stock watering, or domestic use supplied by a public water supply system with one hundred or fewer service connections for which a permit or certificate was not issued by the department or its predecessors, the person or the public water supply system, or their respective successors may continue to use water on an interim basis as provided in section 2 of this act and only in the amount that has been beneficially used if:

(a) The person or the public water supply system files with the department a statement of claim and the evidence required under subsections (2) and (3) of this section during the period beginning September 1, 1998, and ending midnight June 30, 1999, using the standard form prescribed by RCW 90.14.051;

(b) The person or public water supply system has applied the water to beneficial use to the full extent stated in the statement of claim during at least three of the five years preceding the date the statement is filed and the person attests to having done so on the statement; and

(c) The claimant has filed or simultaneously files with the statement of claim an application to appropriate public water under RCW 90.03.250 or 90.44.060 for the quantity of water being put to beneficial use.

(2) The person or public water supply system must file with the statement of claim evidence that the quantity of water described in the claim was used beneficially before January 1, 1993, and during three of the five years preceding the date the statement was filed in the form of any two of the following:

(a) A statement signed by two persons other than the person filing the statement of claim verifying that the claimant beneficially used the water before January 1, 1993, and during three of the five years preceding the date the statement was filed as described in the statement of claim;

(b) A copy of a dated photograph clearly demonstrating the presence of grass or a crop requiring irrigation in the amounts asserted in the statement of claim or of livestock requiring water in such amounts; or records of receipts of the sale of crops by the person or the person's successor indicating that irrigation in the amount claimed was required to produce the crops;

(c) Receipts or records of irrigation or stockwatering equipment purchases or repairs associated with the water use specified in the statement of claim;

(d) Water well construction records identifying the date the well specified in the statement of claim as the point of withdrawal was constructed;

(e) Records of electricity bills directly associated with the withdrawal of water as specified in the statement of claim;

(f) Personal records such as photographs, journals, or correspondence indicating the use of water as asserted in the statement of claim.

(3) Public water supply systems must, in addition to the requirements of subsection (2) of this section, provide evidence of service connections existing and using water as of January 1, 1993, including documentation that the homes were built and occupied.

(4) A claimant who has filed both a statement of claim and an application for a water right has standing to assert a claim of a water right in a general adjudication under RCW 90.03.105 through 90.03.245 for the water use stated in the statement of claim. The statement of claim shall be reviewed by the court as provided in section 2(5) of this act.

NEW SECTION. Sec. 2. (1) A person may continue to use water on an interim basis for the purposes claimed as provided in section 1 of this act until one of the following occurs:

(a) The department makes its final decision granting or denying the water right application filed by the applicant. However, for an application filed under chapter . . ., Laws of 1998 (this act) located within a watershed in which a watershed management planning process established under chapter 90.82 or 90.54 RCW has been initiated prior to July 1, 2000, the department shall make a final decision on the application only after completion of the watershed management plan. The decision must be consistent with an approved and adopted watershed management plan. If the watershed management plan recommends granting applications for water rights or for transfer of water or water rights to uses that are represented by claims filed under section 1 of this act, the department shall grant the application according to the plan. If the planning effort is abandoned or if a watershed management plan is not completed within four years of the date it was initiated, whichever comes earlier, the department shall thereafter make a final decision on the application; or

(b) If the department has not made a final decision on the water right application and a court of competent jurisdiction issues a decree pursuant to a general adjudication under RCW 90.03.200 that defines or denies the claimant's right to appropriate water as provided in subsection (5) of this section.

(2) The department shall notify the claimant/applicant of the instream flow conditions with which each diversion or withdrawal must comply pending the completion of a watershed management plan or general adjudication. If instream flows have been established by rule, the department shall use those flows to regulate the diversion or withdrawal of water during times when the flows are not being met. For areas in which instream flows have not been established by rule, the department shall specify the flow conditions, determined in consultation with the department of fish and wildlife, to which the diversions or withdrawals will be conditioned pending completion of watershed management planning or general adjudication. Upon the completion of a watershed management plan and adoption of instream flows by rule, the diversions or withdrawals permitted under this section shall thereafter be conditioned in accordance with the rule adopting the flows.

(3) In making decisions regarding an application associated with such a claim in the watershed, the department shall consider alternative sources or augmented sources of water for the water use in the application, including but not limited to water supplied through storage enhancements or through the substitution of the use of ground water for the use of surface water. The department may approve the use of such an alternative or augmented source under the application without requiring the application to be resubmitted and without affecting the priority date of the application.

(4) If a watershed management plan adopts locally based standards for water use efficiency, any certificates issued thereafter under this section shall be conditioned accordingly.

(5) The department or the court may authorize the continued use of water under subsection (1) of this section only if the claimant's application meets the requirements of RCW 90.03.247 through 90.03.330, chapter 90.44 RCW, and RCW 90.54.020. If the department finds that the applicable requirements are met, it shall grant the water right application and issue a certificate under RCW 90.03.330 authorizing the person to use that quantity of water that has been put to beneficial use, not to exceed that quantity requested in the application or documented in the statement of claim under section 1 of this act, whichever is less. If in a general adjudication the court finds that the requirements are met, it shall confirm such use of water in a decree issued under RCW 90.03.200 and the department shall issue a certificate under RCW 90.03.240. The claimant has the burden of presenting evidence that the claim and application meet the requirements for granting a water right. The court shall consider all relevant evidence in making its findings and decision. The court may not confirm a right in excess of the quantity of water that has been applied to beneficial use as documented in the statement of claim under section 1 of this act or the quantity requested in the application for a water right, whichever is less. The priority date of any right issued by the department or confirmed by a court under sections 1 through 9 of this act shall be the effective date of this act.

(6) If the department or the court denies the claimant's use of water under subsection (5) of this section, the claimant must cease the use of the water. A decision by the department or a court limiting or denying a claimant's right to continue using water does not constitute a compensable taking under state or federal law because such claimants have no continuing legal right to use water.

NEW SECTION. Sec. 3. If no watershed management planning process under chapter 90.82 or 90.54 RCW has been initiated as of July 1, 2000, in the water resource inventory area in which a water use affected by section 1 of this act is made, the claimant/applicant may continue to use water, subject to the same limitation provided in section 2 (2) and (4) of this act, for the purposes described in the statement of claim until the department makes its decision to grant or deny the application or a court makes its findings and decision under section 2(5) of this act. The department shall make its findings and decision on an application as soon as it is able to do so, taking into consideration its total permit processing workload. A water right certificate issued under this section is subject to the same limitations and conditions as are provided in section 2 of this act.

NEW SECTION. Sec. 4. Sections 1 through 9 of this act do not apply to or authorize any use of water that was the subject of a water right application filed with the department, where the department denied such application.

NEW SECTION. Sec. 5. A continuing interim use of water authorized under sections 1 through 9 of this act shall not affect or impair in any respect whatsoever a water right existing before the effective date of this act. Sections 1 through 9 of this act do not limit the ability of a senior water right holder to take legal action against any other water user to prevent impairment of his or her water right. A right granted under sections 1 through 9 of this act is junior in every respect to a right with a more senior date of priority. Any right granted under sections 1 through 9 of this act may only be exercised in a manner that does not impair or interfere with a water right that is senior to it. The filing of a statement of claim under this section does not constitute an adjudication of any claim to the right to the use of waters as between the claimant and the state, or as between one or more water use claimants. A statement of claim filed under this section shall be admissible in a general adjudication of water rights as prima facie evidence of the times of use and the quantity of water the claimant was withdrawing or diverting to the same extent as is provided by RCW 90.14.081 for a statement of claim in the water rights claims registry on the effective date of this act.

NEW SECTION. Sec. 6. Sections 1 through 9 of this act do not apply to ground water in an area that is, during the period established by section 1(1)(a) of this act, the subject of a general adjudication proceeding for water rights in superior court under RCW 90.03.110 through 90.03.245 and the proceeding applies to ground water rights. Sections 1 through 9 of this act do not apply to surface water in an area that is, during the period established by section 1(1)(a) of this act, the subject of a general adjudication proceeding for water rights in superior court under RCW 90.03.110 through 90.03.245 and the proceeding applies to surface water rights.

NEW SECTION. Sec. 7. The two-dollar fee for filing a water right claim required in RCW 90.14.061 is waived for purposes of claims filed under section 1(1)(a) of this act.

NEW SECTION. Sec. 8. Sections 1 through 9 of this act do not apply to rights embodied in a water right permit or certificate issued by the department or its predecessors, a water right represented by a claim in the water rights claims registry, created under RCW 90.14.111, before September 1, 1998, or a water right exempted from permit and application requirements by RCW 90.44.050.

NEW SECTION. Sec. 9. Sections 1 through 9 of this act do not apply to claims for the use of water in a ground water area or subarea for which a management program adopted by the department by rule and in effect on the effective date of this act establishes acreage expansion limitations for the use of ground water.

NEW SECTION. Sec. 10. Sections 1 through 9 of this act are each added to chapter 90.03 RCW."

Correct the title.