1113-S.E AMS MORT S3197.1

ESHB 1113 - S AMD - 412

By Senator Morton

                                                    PULLED 4/17/97

    Strike everything after the enacting clause and insert the following:

    "NEW SECTION. Sec. 1.  The legislature finds that incentives need to be established to encourage the installation of more efficient irrigation conveyance and on-farm application systems and that significant benefits can accrue including water quantity and water quality benefits.  The legislature finds that increasing the amount of lands that may be irrigated under an existing water right can impact the amount of return flow water available to meet the needs of other existing water rights.  Further, that adherence to a strict nonimpairment standard has slowed efforts to make irrigation water delivery systems more efficient.  The legislature finds that reliance on public funds to provide incentives to install efficient irrigation systems is less reliable and more costly to the public than providing economic incentives together with establishing compensating mechanisms to protect existing rights from impairment.

    The purpose of this act is to establish mechanisms that will provide a means to test incentives for improving the efficiency of irrigation water use.

NEW SECTION. Sec. 2.  A new section is added to chapter 90.03 RCW to read as follows:

    RCW 90.03.380 does not apply to a change regarding a portion of the water governed by a water right to appropriate surface water used for agricultural purposes that is made surplus to the beneficial uses exercised under the right through the implementation of practices or technologies, including but not limited to conveyance practices or technologies that are more efficient or more water use efficient than those under which the right was perfected or through a change in the crops grown under the water right.  If a portion of the water governed by a water right to surface water is made surplus to the beneficial uses exercised under the right through the implementation of practices or technologies, including but not limited to conveyance practices or technologies, which are more efficient or more water use efficient than those under which the right was perfected, the right to use the surplus water may be changed to use on other lands owned by the holder of the water right that are contiguous to the lands upon which the use of the water was authorized by the right before such a change in accordance with the following:

    (1) For the purpose of calculating the amount of surplus water that may be allocated to irrigate additional lands, the water right holder shall assume that the amount of water per acre that is to be used to irrigate the additional land is equal to the revised amount of water per acre that the lands previously allowed to be irrigated under the original right would receive.  Once the amount of surplus water is calculated in accordance with this section, the allowable quantity of water that may be used to irrigate each parcel may be used on either the original parcel or on the additional land without differentiation;

    (2) Of the waters determined to be surplus to the beneficial uses exercised under the right:

    (a) Fifty percent shall be available to be used on additional land and shall retain the date of priority of the original right; and

    (b) Fifty percent shall be available to be used on additional land and shall have a date of priority that is subordinate to other water rights that were established as of the date the water was applied to the additional land.

    The holder of the water right shall notify the department of such a change.  The department may prescribe a form upon which notification is to be made.  The department shall establish procedures to verify the information contained in the notification and may require the submission of additional information to assure general compliance with the provisions of this section.  Such notification constitutes a change in the holder's water right and, upon receiving the notification, the department shall revise its records for the water right to reflect the change.

    This section does not apply to water supplied by an irrigation district.

    This section does not apply to surplus water resulting from water efficiency improvements that were financed in whole or in part with state funds.

    Any person who uses this section shall not impair any existing right unless compensation or mitigation for such impairment or injury is agreed to by the holder of the affected water right.

    (3) This section expires June 3, 2001.

    Sec. 3.  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)).  However, all or a portion of a right may be transferred to another or to others and become appurtenant to any other land or additional 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.  A change in the place of use, point of diversion, and/or purpose of use of a water right to enable irrigation of additional acreage or the addition of new uses may be permitted if such change results in no increase in the annual consumptive quantity of water used under the water right.  For purposes of this section, "annual consumptive quantity" means the estimated or actual annual amount of water diverted pursuant to the water right, reduced by the estimated annual amount of return flows, averaged over the most recent five-year period of continuous beneficial use of the water right.  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 an authorization to make the change or transfer.  When the applicant has completed the change or transfer, 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.  The board of directors of an irrigation district may approve such a change if the board determines that the change:  Will not adversely affect the district's ability to deliver water to other landowners; will not require the construction by the district of diversion or drainage facilities unless the board finds that the construction by the district is in the interest of the district; will not impair the financial or operational integrity of the district; and is consistent with the contractual obligations of the district.

(4) 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. 4.  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.  An amendment to a permit or certificate to change the place of use, point of withdrawal, and/or purpose of use of a ground water right to enable irrigation of additional acreage or the addition of new uses may be issued if such change results in no increase in the annual consumptive quantity of water used or authorized for use under the ground water right.  For purposes of this section, "annual consumptive quantity" means the estimated or actual annual amount of water withdrawn or authorized for withdrawal pursuant to the ground water right reduced by the estimated annual amount of return flows.  For permits or certificates under which actual amounts of water have been withdrawn, withdrawals and return flows shall be averaged over the most recent five-year period of continuous beneficial use of the ground water right or, if the period of actual continuous beneficial use is less than five years, such lesser period.

NEW SECTION. Sec. 5.  The department of ecology shall submit a report to the legislature by December 1, 2000, containing the results of activities authorized under this act."

ESHB 1113 - S AMD - 412

By Senator Morton

    On page 1, line 1 of the title, after "changes;" strike the remainder of the title and insert "amending RCW 90.03.380 and 90.44.100; adding a new section to chapter 90.03 RCW; creating new sections; and providing an expiration date."

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