2050-S

2050-S.E AMS AE S2517.4

ESHB 2050 - S COMM AMD

By Committee on Agriculture & Environment

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.

Sec. 3. RCW 90.44.030 and 1945 c 263 s 2 are each amended to read as follows:

The rights to appropriate the surface waters of the state and the rights acquired by the appropriation and use of surface waters shall not be affected or impaired by any of the provisions of this supplementary chapter and, to the extent that any underground water is part of or tributary to the source of any surface stream or lake, or that the withdrawal of ground water may affect the flow of any spring, water course, lake, or other body of surface water, the right of an appropriation and owner of surface water shall be superior to any subsequent right hereby authorized to be acquired in or to ground water.

(2) Rights acquired by appropriation of surface waters are affected or impaired by a ground water withdrawal only if:

(a) After no more than six months pumping, the surface water will lie within the cone of depression of a well tapping an unconfined aquifer; or

(b) Withdrawal of ground water from a well tapping a confined aquifer will cause a measurable head reduction within fifty feet of the surface water body in question in the shallowest unconfined water table aquifer that underlies that surface water body; or

(3) If any of the conditions in subsection (2) of this section occur or will occur, then withdrawal of ground water affects or impairs existing surface water rights, including instream flow appropriations adopted by regulation, that are not being satisfied during the period of the occurrence.

Sec. 4. RCW 90.44.035 and 1987 c 109 s 107 are each amended to read as follows:

For purposes of this chapter:

(1) "Department" means the department of ecology;

(2) "Director" means the director of ecology;

(3) "Ground waters" means all waters that exist beneath the land surface or beneath the bed of any stream, lake or reservoir, or other body of surface water within the boundaries of this state, whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves. There is a recognized distinction between natural ground water and artificially stored ground water;

(4) "Natural ground water" means water that exists in underground storage owing wholly to natural processes; ((~~and~~))

(5) "Artificially stored ground water" means water that is made available in underground storage artificially, either intentionally, or incidentally to irrigation and that otherwise would have been dissipated by natural waste;

(6) "Confined aquifer" means an aquifer in which ground water is under sufficient hydrostatic head to rise above the bottom of the overlying confining bed;

(7) "Confining bed" means a layer of low permeability material immediately overlying a confined aquifer; and

(8) "Measurable" means capable of being measured in the field with the use of equipment normally used by professionals for the measurement in question.

Sec. 5. RCW 90.44.070 and 1987 c 109 s 110 are each amended to read as follows:

(1) 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 department 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 the department, require further evidence, proof, and testimony before granting or denying any such permits.

(2) No permit for the development or withdrawal of public ground waters may be denied or conditioned due to injury to, impairment of, or conflict with an existing surface water right unless the ground water withdrawal in question will impair the surface water right pursuant to RCW 90.44.030(2): PROVIDED, That this section does not affect the ability of the department to limit or restrict future ground water appropriations by adopting rules after following the procedures of RCW 90.44.180 or 90.44.400 through 90.44.420 or chapter 90.54 RCW.

(3) The standards governing impairment of existing surface water rights by applications to appropriate public ground water in RCW 90.44.030(2), this subsection, and subsection (2) of this section apply only to the determinations to be made by the department in ruling upon such applications, and reflect the uncertainties inherent in making tentative determinations regarding future impacts of withdrawing ground water. Any person claiming that a senior water right is injured by one or more junior water rights may file an action to enjoin the junior water rights in the superior court of the county where the claimed senior water right is located. The superior court shall hear such action de novo, and if it finds by a preponderance of the evidence that one or more junior water rights is causing or contributing to the injury of a senior water right, the court may enjoin use of the junior water rights in reverse order of priority in the manner it deems necessary to protect the senior water right. This section does not apply where the claimed senior water right consists of a minimum flow or level of the closure of a surface water body.

NEW SECTION. Sec. 6. A new section is added to chapter 90.03 RCW to read as follows:

(1) 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.

(2) In making a determination as to whether an application to appropriate public water will impair existing rights the department shall take into consideration:

(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 offset 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) Seasonal variations in water supply and in the recharge of surface and ground water bodies; and

(3) The rule of impairment provided by RCW 90.44.030 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.

NEW SECTION. Sec. 7. Any person whose application to appropriate public ground water was denied by the department of ecology between November 1, 1995, and the effective date of this section, when one of the grounds for denial was that the proposed ground water withdrawal would impair, or conflict with, surface water closures or surface water rights including minimum flows, may have his or her application reconsidered in accordance with this section. Any such person desiring reconsideration shall resubmit his or her application to the department of ecology within thirty days of the effective date of this section. The department of ecology shall accord any such resubmitted application its original priority date and shall reconsider the application on a priority basis, applying the standards of this act. The decision of the department of ecology may be appealed in the manner provided by law for appeals of decisions on applications to appropriate public water."

ESHB 2050 - S COMM AMD

By Committee on Agriculture & Environment

On page 1, line 2 of the title, after "uses;" strike the remainder of the title and insert "amending RCW 90.03.380, 90.44.100, 90.44.030, 90.44.035, and 90.44.070; adding a new section to chapter 90.03 RCW; and creating a new section."