AN
ACT Relating to incentives for water-efficient irrigation systems; amending RCW
90.03.380; adding a new chapter to Title 90 RCW; and creating a new section.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that significant water savings may be realized through the
installation and use of more efficient irrigation systems and techniques. The
legislature also finds that positive economic incentives, establishment of necessary
legal procedures, and removal of legal barriers are needed to stimulate the
development of workable technologies and farming systems that rely on lesser
quantities of water.
The
purpose of this act is to foster the use of water-efficient irrigation systems
by allowing the saved water to be voluntarily transferred by the water right
holder to other uses or other places of use. Additionally, the purpose is
to establish incentives through enabling self-funded, private capital or public
funds to provide improved market-based incentives for adopting water saving
technologies and to allow the benefits of the conserved water to be fully
realized. It is the intent of this act that sufficient protections be provided
to assure that existing water users are not adversely affected by transfers
approved under this act.
NEW
SECTION. Sec. 2. The
definitions in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1)
"Contract" means a written legal instrument that provides for the
transfer of a portion of a water right from an existing water right holder to
another person for consideration.
(2)
"Department" means the department of ecology.
(3)
"Net water savings" has the same meaning as defined in RCW 90.42.020.
(4)
"Person" means a person, corporation, quasi-municipal corporation,
municipal corporation, or state agency.
(5)
"Reduction in evaporative loss" means the amount of water that is no
longer lost to further use as a result of changing from a conventional
irrigation system to a water-efficient irrigation system. "Reduction in
evaporative loss" includes the reduction in the amount of water consumed
through evaporation during the conveyance and/or the application of water to crops
and through transpiration by nonproductive plants such as cover crops
associated with the change in irrigation systems, but does not include any
water that contributed to return flows used to satisfy existing rights.
(6)
"Transfer" means a transfer of, change in, or amendment to a surface
or ground water right described in RCW 90.03.380 and 90.44.100 or to transfer,
change, or amend such a right.
(7)
"Trust water right" means a water right transferred to and managed by
the department for the benefit of instream flows or for the allocation to new
uses as provided in chapter 90.38 or 90.42 RCW.
(8)
"Water-efficient irrigation system" means a system, the use of which
results in a water savings when compared to the use or loss of water
experienced in conveying water and/or applying water to a crop or crops before
the installation of the system.
NEW
SECTION. Sec. 3. (1) A
person holding a valid water right who installs a water-efficient irrigation
system for use under the right may apply to the department for a transfer of
the use of the water resulting from the reduction in evaporative loss plus any
additional net water savings resulting from the installation. The water use
may be transferred:
(a)
To other land owned by the person with less senior water rights or that lacks a
full and sufficient supply of water or for the irrigation of an additional
parcel or parcels of land owned by the person. The application for such a
transfer must be processed based upon the same criteria as if the transfer were
to be made to another person; or
(b)
To another person for use on other land.
In
the latter case, the person holding the valid water right may enter into a
contract with another person for the transfer of water saved through
installation of the water-efficient irrigation system. A contract may allow
for a permanent transfer of a portion of the original water right, or for lease
agreements with set expiration dates. The applicant shall state that the
contract is not permanent in the application if the contract is not permanent.
Such a contract shall be filed with the department with or as a supplement to
the application and the department shall maintain a record of such a contract
with the certificate of water right for the transferred water.
(2)
In determining the amount that is transferrable as a result of the installation
of a water-efficient irrigation system, the department shall allow the transfer
of an amount equal to the reduction in the evaporative loss. The reduction in
evaporative loss is a readily transferrable component of net water savings.
In
addition, the department shall evaluate whether there are additional net water
savings that result directly from installation of the water-efficient
irrigation system that could be transferred without detriment to other existing
water users. The department may not delay because of decisions on the
determination of additional net water savings the approval of the transfer of
the water that constitutes the reduction in evaporative loss.
(3)
The use of water supplied by an irrigation district that is saved through
installation of a water-efficient irrigation system as described in this
section shall be regulated solely as provided by the board of directors of the
irrigation district.
(4)
A person wishing to make application for a transfer of a water right under this
chapter, whether for surface or ground water, shall comply with RCW 90.03.380.
The transferred portion of the water right has the same date of priority as the
water right from which it originated, but between them the transferred portion
of the right is inferior in priority unless otherwise provided by the parties
by contract filed with the department.
NEW
SECTION. Sec. 4. The
department may adopt rules, in accordance with chapter 34.05 RCW, for
procedures to be used to facilitate the processing of requests for water right
transfers made under this chapter and to establish a streamlined procedure to
quantify the reduction in the evaporative loss. The methods used by the
department for calculating reductions in evaporative loss, including but not
limited to those for determining the exposure of water to evaporative loss
using various irrigation systems, and the pan evaporation data to be used shall
be the methods and data recommended by the Washington state cooperative
extension service.
The
rules may establish procedures for the department to make preliminary findings
that can be used as an initial basis for developing contracts by applicants.
NEW
SECTION. Sec. 5. An
applicant shall accompany an application for a water right transfer under this
chapter with a fee established in RCW 90.03.470.
NEW
SECTION. Sec. 6. In
processing applications for transfers of portions of water rights under this
chapter, if the department is unable to conclusively determine the validity of
the original water right, the department may include a presumption of validity
in the certificate of water rights. The presumption must provide to the
contract purchaser the same right to the use of water embodied in the original
water right.
The
presumption of validity may not be used as evidence as to the existence or
nonexistence in a water right adjudication conducted under chapter 90.03 RCW.
NEW
SECTION. Sec. 7. A
holder of a water right may voluntarily enter into a contract with the
department. The department may utilize funds that are now or hereafter
authorized for the purchase of water savings made available under this
chapter. The department shall utilize the same methods of calculating water
that is transferrable to another party under this chapter in determining the
amount of water that is transferrable to the state. If additional net water
saved is available for the benefit of only a stream segment, the calculations
may be made on a case-by-case basis while assuring no detriment to existing
water users occurs.
NEW
SECTION. Sec. 8. This
chapter may be known and cited as the agricultural water conservation
incentives act.
Sec.
9. RCW
90.03.380 and 1997 c 442 s 801 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 the)). However, all or a portion
of a 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. 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 the application shall not be granted until
notice of the application is 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.
NEW
SECTION. Sec. 10.
Sections 2 through 8 of this act constitute a new chapter in Title 90 RCW.
