H‑0199.3   _____________________________________________

 

HOUSE BILL 1878

 

           _____________________________________________

 

State of Washington      57th Legislature     2001 Regular Session

 

By Representatives G. Chandler, Linville, Lovick, O'Brien, Wood, Edmonds and Jackley

 

Read first time 02/07/2001.  Referred to Committee on Agriculture & Ecology.

_1      AN ACT Relating to water rights established under the authority

_2  of family farm permits; amending RCW 90.66.040, 90.66.060, and

_3  90.03.380; and adding a new section to chapter 90.66 RCW.

     

_4  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

     

_5      NEW SECTION.  Sec. 1.  A new section is added to chapter 90.66

_6  RCW to read as follows:

_7      (1) Transfers of water rights established under the authority

_8  of family farm permits may be approved as authorized under this

_9  section and under RCW 90.03.380, 90.03.390, or 90.44.100 as

10  appropriate.

11      (2) A water right established under the authority of a family

12  farm permit may be transferred:

13      (a) For use for agricultural irrigation purposes as limited by

14  RCW 90.66.060 (1) and (2) except as provided in RCW 90.66.060(3);

15      (b) To any purpose of use that is a beneficial use of water if

16  the transfer is made exclusively under a lease agreement, except

17  that transfers for the use of water for agricultural irrigation

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_1  purposes shall be limited as provided by RCW 90.66.060 (1) and

_2  (2);

_3      (c) To any purpose of use that is a beneficial use of water if

_4  the water right is for the use of water at a location that is,

_5  immediately before the transfer is approved, within the boundaries

_6  of a city or town or within the boundaries of an urban growth area

_7  designated under chapter 36.70A RCW, except that transfers for the

_8  use of water for agricultural irrigation purposes shall be limited

_9  as provided by RCW 90.66.060 (1) and (2).

10      (3) If a portion of the water governed by a water right

11  established under the authority of a family farm permit is made

12  surplus to the beneficial uses exercised under the right through

13  the implementation of practices or technologies, including but not

14  limited to conveyance practices or technologies, which are more

15  efficient or more water-use efficient than those under which the

16  right was perfected, the right to use the surplus water may be

17  transferred to any purpose of use that is a beneficial use of

18  water.  Nothing in this subsection authorizes:  A transfer of the

19  portion of a water right that is necessary for the production of

20  crops historically grown under the right; or a transfer of a water

21  right or a portion of a water right that has not been perfected

22  through beneficial use before the transfer.

23      (4) The authority granted by this section to transfer or alter

24  the purpose of use of a water right established under the

25  authority of a family farm permit shall not be construed as

26  limiting in any manner the authority granted by RCW 90.03.380,

27  90.03.390, or 90.44.100 to alter other elements of such a water

28  right.

     

29      Sec. 2.  RCW 90.66.040 and 1979 c 3 s 4 are each amended to read as

30  follows:

31      For the purposes of this chapter, the following definitions

32  shall be applicable:

33      (1) "Family farm" means a geographic area including not more

34  than two thousand acres of irrigated agricultural lands, whether

35  contiguous or noncontiguous, the controlling interest in which is

36  held by a person having a controlling interest in no more than two

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_1  thousand acres of irrigated agricultural lands in the state of

_2  Washington which are irrigated under rights acquired after

_3  December 8, 1977.

_4      (2) "Person" means any individual, corporation, partnership,

_5  limited partnership, organization, or other entity whatsoever,

_6  whether public or private.  The term "person" shall include as one

_7  person all corporate or partnership entities with a common

_8  ownership of more than one-half of the assets of each of any

_9  number of such entities.

10      (3) "Controlling interest" means a property interest that can

11  be transferred to another person, the percentage interest so

12  transferred being sufficient to effect a change in control of the

13  landlord's rights and benefits.  Ownership of property held in trust

14  shall not be deemed a controlling interest where no part of the

15  trust has been established through expenditure or assignment of

16  assets of the beneficiary of the trust and where the rights of the

17  family farm permit which is a part of the trust cannot be

18  transferred to another by the beneficiary of the trust under terms

19  of the trust.  Each trust of a separate donor origin shall be

20  treated as a separate entity and the administration of property

21  under trust shall not represent a controlling interest on the part

22  of the trust officer.

23      (4) "Department" means the department of ecology of the state

24  of Washington.

25      (5) "Application", "permit" and "public waters" shall have the

26  meanings attributed to these terms in chapters 90.03 and 90.44

27  RCW.

28      (6) "Public water entity" means any public or governmental

29  entity with authority to administer and operate a system to supply

30  water for irrigation of agricultural lands.

31      (7) "Transfer" means a transfer, change, or amendment to a

32  water right referred to in RCW 90.03.380, 90.03.390, or 90.44.100.

33      (8) "Withdraw" means to withdraw ground water or to divert

34  surface water.

     

35      Sec. 3.  RCW 90.66.060 and 1979 c 3 s 6 are each amended to read as

36  follows:

37      (1) Except as provided in subsections (2) and (3) of this

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_1  section, the right to withdraw water for use for the irrigation of

_2  agricultural lands under authority of a family farm permit shall

_3  have no time limit ((but)) and shall be conditioned upon the land

_4  being irrigated complying with the definition of a family farm as

_5  defined at the time the permit is issued((:  PROVIDED, HOWEVER,

_6  That)).

_7      (2) If the acquisition by any person of land and water rights

_8  by gift, devise, bequest, or by way of bona fide satisfaction of a

_9  debt, would otherwise cause land being irrigated pursuant to a

10  family farm permit to lose its status as a family farm, such

11  acquisition shall be deemed to have no effect upon the status of

12  family farm water permits pertaining to land held or acquired by

13  the person acquiring such land and water rights if all lands held

14  or acquired are again in compliance with the definition of a

15  family farm within five years from the date of such acquisition.

16      (((2))) If the department determines that water is being

17  withdrawn under a family farm permit for use on land not in

18  conformity with the definition of a family farm, the department

19  shall notify the holder of such family farm permit by personal

20  service of such fact and the permit shall be suspended two years

21  from the date of receipt of notice unless the person having a

22  controlling interest in said land satisfies the department that

23  such land is again in conformity with the definition of a family

24  farm.  The department may, upon a showing of good cause and

25  reasonable effort to attain compliance on the part of the person

26  having the controlling interest in such land, extend the two year

27  period prior to suspension.  If conformity is not achieved prior to

28  five years from the date of notice the rights of withdrawal shall

29  be canceled.

30      (3) This section does not apply in any manner whatsoever to a

31  transfer of surplus water authorized by section 1(3) of this act;

32  however, this section does apply to other transfers of a water

33  right established under the authority of a family farm permit to

34  the extent that the transfer is to a use of water for agricultural

35  irrigation purposes.

     

36      Sec. 4.  RCW 90.03.380 and 1997 c 442 s 801 are each amended to

37  read as follows:

 

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_1      (1) The right to the use of water which has been applied to a

_2  beneficial use in the state shall be and remain appurtenant to the

_3  land or place upon which the same is used:  PROVIDED, HOWEVER,

_4  That the right may be transferred to another or to others and

_5  become appurtenant to any other land or place of use without loss

_6  of priority of right theretofore established if such change can be

_7  made without detriment or injury to existing rights.  The point of

_8  diversion of water for beneficial use or the purpose of use may be

_9  changed, if such change can be made without detriment or injury to

10  existing rights.

11      (a) A change in the place of use, point of diversion, and/or

12  purpose of use of a water right to enable irrigation of additional

13  acreage or the addition of new uses may be permitted if such

14  change results in no increase in the annual consumptive quantity

15  of water used under the water right.  For purposes of this section,

16  "annual consumptive quantity" means the estimated or actual annual

17  amount of water diverted pursuant to the water right, reduced by

18  the estimated annual amount of return flows, averaged over the

19  most recent five-year period of continuous beneficial use of the

20  water right.

21      (b) Before any transfer of such right to use water or change of

22  the point of diversion of water or change of purpose of use can be

23  made, any person having an interest in the transfer or change,

24  shall file a written application therefor with the department, and

25  the application shall not be granted until notice of the

26  application is published as provided in RCW 90.03.280.  If it shall

27  appear that such transfer or such change may be made without

28  injury or detriment to existing rights, the department shall issue

29  to the applicant a certificate in duplicate granting the right for

30  such transfer or for such change of point of diversion or of use.

31  The certificate so issued shall be filed and be made a record with

32  the department and the duplicate certificate issued to the

33  applicant may be filed with the county auditor in like manner and

34  with the same effect as provided in the original certificate or

35  permit to divert water.

36      (2) If an application for change proposes to transfer water

37  rights from one irrigation district to another, the department

38  shall, before publication of notice, receive concurrence from each

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_1  of the irrigation districts that such transfer or change will not

_2  adversely affect the ability to deliver water to other landowners

_3  or impair the financial integrity of either of the districts.

_4      (3) A change in place of use by an individual water user or

_5  users of water provided by an irrigation district need only

_6  receive approval for the change from the board of directors of the

_7  district if the use of water continues within the irrigation

_8  district, and when water is provided by an irrigation entity that

_9  is a member of a board of joint control created under chapter

10  87.80 RCW, approval need only be received from the board of joint

11  control if the use of water continues within the area of

12  jurisdiction of the joint board and the change can be made without

13  detriment or injury to existing rights.

14      (4) This section shall not apply to trust water rights acquired

15  by the state through the funding of water conservation projects

16  under chapter 90.38 RCW or RCW 90.42.010 through 90.42.070.

17  Subsection (1)(a) of this section does not apply to and shall not

18  be construed as providing any limitation to the transfers,

19  changes, or amendments of water rights established under the

20  authority of a family farm permit that are authorized under

21  section 1 of this act.

 

‑‑‑ END ‑‑‑

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