[atlas:bill]

AN ACT Relating to water policy; amending RCW 90.54.020, 90.22.010, 90.03.386, 90.03.383, 90.48.495, 90.48.112, 90.46.010, 90.46.030, 90.46.050, 90.46.130, 90.03.380, 90.44.100, 43.21B.110, 90.38.020, 90.42.080, and 90.03.370; reenacting and amending RCW 90.14.140; adding new sections to chapter 90.54 RCW; adding a new section to chapter 90.82 RCW; adding new sections to chapter 90.03 RCW; adding new sections to chapter 70.119A RCW; adding new sections to chapter 90.46 RCW; adding new sections to chapter 90.44 RCW; creating a new section; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature finds that the importance of securing water for streams to ensure the health of the state's watersheds has long been recognized in state law. As the state's population continues to grow, and demands on our limited water supplies increase, the state's water management system needs to facilitate and ensure that adequate water is secured in streams in sufficient quantity to meet the needs of the state's fishery and related environmental resources.

The legislature finds that an adequate supply of potable water for domestic, commercial, and industrial use is vital to the health and well-being of the people of the state of Washington. The state's water management system should ensure the efficient and effective development of the state's public water supplies, and ensure that the public health needs of people in the state of Washington are met now and in the future.

The legislature finds that the state's economy has been and remains significantly dependent on the health of the state's diverse and abundant agriculture. Further, the legislature finds that agricultural lands preserve important environmental values throughout the state. The state's water management system must provide the flexibility and certainty needed to sustain the state's agriculture in a changing world economy.

NEW SECTION. Sec. 2. A new section is added to chapter 90.54 RCW to read as follows:

(1) The purpose of this section is to specify the objectives and priorities to be used for setting instream flows under chapters 90.22 and 90.82 RCW and RCW 90.54.020.

(2) Instream flow rules are to be established to meet base flows in accordance with RCW 90.54.020. For purposes of this chapter, base flows are defined by and must meet the following requirements:

(a) Be achievable by taking into account the natural hydrology of a stream, including variations in conditions throughout the length of the stream and variations between seasons and years;

(b) Be sufficient to support the varying life stages of fish in those stream segments at the time of year the fish are or were present, with a priority for providing for healthy populations of salmonids; and

(c) Be developed using scientifically based methods that are generally accepted within the scientific community and have undergone peer review.

(3) Priority shall be given to establishing instream flow rules in: (a) Water resource inventory areas numbers 1, 5, 7, 8, 9, 10, 12, 17, 18, 32, 35, 37, 38, 39, 45, 48, and 49 as those areas are established in chapter 173‑500 WAC as it exists on the effective date of this section; and

(b) Water resource inventory areas that are conducting planning under chapter 90.82 RCW as of the effective date of this section.

(4) Instream flow rules shall be established in the water resource inventory areas identified in subsection (3)(a) and (b) of this section by December 31, 2010. Instream flow rules shall be established in all other water resource inventory areas as funding becomes available.

(5) By December 2002, the department, in consultation with the department of fish and wildlife and with affected tribal governments, planning units under chapter 90.82 RCW, and local governments, shall publish a work plan that identifies where and when instream flows will be developed and adopted by rule in order to achieve the goals in this section. The work plan will also define tributary areas where flows should be addressed and provide a schedule for prioritizing, recommending, and setting flows in these areas, as appropriate. This work plan will be updated annually.

The department, in consultation with the department of fish and wildlife and with affected tribal governments, planning units under chapter 90.82 RCW, and local governments, shall develop and publish strategies for achieving flows that satisfy the flow requirements of the instream flow rules including, but not limited to, an identification of priorities for the use of state resources to achieve the flows. The strategies shall identify means of measuring whether progress toward achieving instream flow requirements and overcoming other limiting factors identified for streams is being made, and the actions that will be taken if such progress is not being made for a stream. For a water resource inventory area in which watershed planning is conducted under chapter 90.82 RCW, the strategies shall be those contained in the plan developed under chapter 90.82 RCW.

NEW SECTION. Sec. 3. A new section is added to chapter 90.82 RCW to read as follows:

The strategies developed under RCW 90.82.070(2) shall include, but shall not be limited to, the identification of means for measuring how making progress in achieving minimum instream flows in the WRIA is to be measured and the actions that will be taken if such progress is not being made for a stream.

If planning contains a habitat component under RCW 90.82.100, that component of the plan shall identify means of measuring how making progress in overcoming limiting factors for fish other than instream flows is to be measured and the actions that will be taken if such progress is not being made for the stream. If planning contains an instream flow component under RCW 90.82.080, any minimum instream flows established under that component shall satisfy the requirements of section 2(2) of this act.

NEW SECTION. Sec. 4. A new section is added to chapter 90.54 RCW to read as follows:

(1) Instream flow rules required by section 2 of this act must be established in accordance with the process described in this section.

(2) Where instream flow recommendations are being developed under chapter 90.82 RCW, instream flow rules must be developed according to the process established in chapter 90.82 RCW. Where instream flow recommendations are not being developed under chapter 90.82 RCW, instream flow rules must be developed as required in RCW 90.22.010(3).

(3) Where consistent with the requirements of section 2(2) of this act, instream flow rules must incorporate an instream flow component established by:

(a) The conditions for a license issued by the federal energy regulatory commission after May 1994 for a hydroelectric power generating facility, where the department of ecology has approved or otherwise formally acknowledged the instream flow component on behalf of the state;

(b) The conditions established under a habitat conservation plan approved under the federal endangered species act, where the department of ecology has approved or otherwise formally acknowledged the instream flow component on behalf of the state;

(c) A comprehensive irrigation district management plan that meets the requirements in the plan manual approved by the agriculture, fish, and water executive committee in May 2001; and

(d) The federal Yakima river basin water enhancement project pursuant to P.L. 103‑434.

Sec. 5. RCW 90.54.020 and 1997 c 442 s 201 are each amended to read as follows:

Utilization and management of the waters of the state shall be guided by the following general declaration of fundamentals:

(1) Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial.

(2) Allocation of waters among potential uses and users shall be based generally on the securing of the maximum net benefits for the people of the state; however, this allocation principle does not apply to establishing instream flows under section 2 of this act. Maximum net benefits shall constitute total benefits less costs including opportunities lost.

(3) The quality of the natural environment shall be protected and, where possible, enhanced as follows:

(a) Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. The criteria for establishing such base flows for fish are the criteria established in section 2 of this act. Base flows established for any other purpose for any particular time of year in any particular stream segment shall not be less than those established for fish. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.

(b) Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served. Technology-based effluent limitations or standards for discharges for municipal water treatment plants located on the Chehalis, Columbia, Cowlitz, Lewis, or Skagit river shall be adjusted to reflect credit for substances removed from the plant intake water if:

(i) The municipality demonstrates that the intake water is drawn from the same body of water into which the discharge is made; and

(ii) The municipality demonstrates that no violation of receiving water quality standards or appreciable environmental degradation will result.

(4) The development of multipurpose water storage facilities shall be a high priority for programs of water allocation, planning, management, and efficiency. The department, other state agencies, and local governments((~~, and planning units formed under section 107 or 108 of this act~~)) shall evaluate the potential for the development of new storage projects and the benefits and effects of storage in reducing damage to stream banks and property, increasing the use of land, providing water for municipal, industrial, agricultural, power generation, and other beneficial uses, and improving stream flow regimes for fisheries and other instream uses.

(5) Adequate and safe supplies of water shall be preserved and protected in potable condition to satisfy human domestic needs.

(6) Multiple-purpose impoundment structures are to be preferred over single-purpose structures. Due regard shall be given to means and methods for protection of fishery resources in the planning for and construction of water impoundment structures and other artificial obstructions.

(7) Federal, state, and local governments, individuals, corporations, groups and other entities shall be encouraged to carry out practices of conservation as they relate to the use of the waters of the state. In addition to traditional development approaches, improved water use efficiency and conservation shall be emphasized in the management of the state's water resources and in some cases will be a potential new source of water with which to meet future needs throughout the state.

(8) Development of water supply systems, whether publicly or privately owned, which provide water to the public generally in regional areas within the state shall be encouraged. Development of water supply systems for multiple domestic use which will not serve the public generally shall be discouraged where water supplies are available from water systems serving the public.

(9) Full recognition shall be given in the administration of water allocation and use programs to the natural interrelationships of surface and ground waters.

(10) Expressions of the public interest will be sought at all stages of water planning and allocation discussions.

(11) Water management programs, including but not limited to, water quality, flood control, drainage, erosion control and storm runoff are deemed to be in the public interest.

Sec. 6. RCW 90.22.010 and 1997 c 32 s 4 are each amended to read as follows:

(1) The department of ecology may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, the department of ecology shall, when requested by the department of fish and wildlife to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if the department of ecology finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination. Any request submitted by the department of fish and wildlife shall include a statement setting forth the need for establishing a minimum flow or level. When the department acts to preserve water quality, it shall include a similar statement with the proposed rule filed with the code reviser.

(2) The criteria for establishing flows for fish under this chapter are the criteria established in section 2 of this act. Flows established for any other purpose for any particular time of year in any particular stream segment shall not be less than those established for fish.

(3) When the department of ecology develops proposals for establishing minimum flows for a stream for which the procedures provided in RCW 90.82.080 do not apply, the department shall ensure that it conducts its analysis of stream flow data and develops any proposals for minimum flows in close consultation with the appropriate local governments, any affected tribal governments, and with representatives of other affected parties.

(4) This section shall not apply to waters artificially stored in reservoirs, provided that in the granting of storage permits by the department of ecology in the future, full recognition shall be given to downstream minimum flows, if any there may be, which have theretofore been established hereunder.

NEW SECTION. Sec. 7. A new section is added to chapter 90.03 RCW to read as follows:

(1) The department shall, through a network of water masters appointed under this chapter, stream patrollers appointed under chapter 90.08 RCW, and other assigned compliance staff, achieve compliance with the water laws and rules of the state of Washington in the following sequence:

(a) The department shall prepare and distribute technical and educational information to assist water users in complying with the requirements of their water rights and applicable water laws;

(b) When the department determines that a violation has occurred or is about to occur, it shall first attempt to achieve voluntary compliance by informing and educating the responsible person or persons regarding the law, the reason that the action or incipient action is not allowed under the law, and the potential penalties and sanctions that may be brought if compliance is not achieved. As part of this first response, the department shall offer technical information and assistance to the person in identifying alternative means to accomplish the person's purposes within the framework of the law; and

(c) If education and technical assistance do not achieve compliance the department shall issue a notice of violation, a formal administrative order under RCW 43.27A.190, or assess penalties under RCW 90.03.600 unless the noncompliance is corrected expeditiously or the department determines no impairment or harm.

(2) Nothing in the section is intended to prevent the department of ecology from taking immediate action to cause a violation to be ceased immediately if in the opinion of the department the nature of the violation is causing or is likely to cause immediate harm to other water rights or to public resources.

(3) The department of ecology shall to the extent practicable station its compliance personnel within the watershed communities they serve.

Sec. 8. RCW 90.03.386 and 1991 c 350 s 2 are each amended to read as follows:

(1) Within service areas established pursuant to chapters 43.20 and 70.116 RCW, the department of ecology and the department of health shall coordinate approval procedures to ensure compliance and consistency with the approved water system plan.

(2) For a public water system, the maximum number of service connections or maximum population to be served specified on a water right application, permit, certificate, or claim shall not be an attribute limiting exercise of the water right. However, if a water system plan is required to be approved for the public water system under chapter 43.20 RCW or as part of a coordinated water system plan under chapter 70.116 RCW, the number of service connections or population served under the water right may be expanded only during such time as the public water system is in compliance with the requirements of its approved water system plan and any conservation required of the system under sections 10 and 11 of this act.

(3) In amending this section and RCW 90.03.380(4), the legislature does not intend to alter any judicial interpretation of the law of municipal water rights that is not expressly addressed.

Sec. 9. RCW 90.03.383 and 1991 c 350 s 1 are each amended to read as follows:

(1) The legislature recognizes the value of interties for improving the reliability of public water systems, enhancing their management, and more efficiently utilizing the increasingly limited resource. Given the continued growth in the most populous areas of the state, the increased complexity of public water supply management, and the trend toward regional planning and regional solutions to resource issues, interconnections of public water systems through interties provide a valuable tool to ensure reliable public water supplies for the citizens of the state and to benefit environmental resources. Public water systems have been encouraged in the past to utilize interties to achieve public health and resource management objectives. The legislature finds that it is in the public interest to recognize interties existing and in use as of January 1, 1991, and to have associated water rights modified by the department of ecology to reflect current use of water through those interties, pursuant to subsection (3) of this section. The legislature further finds it in the public interest to develop a coordinated process to review proposals for interties commencing use after January 1, 1991.

(2) For the purposes of this section, the following definitions shall apply:

(a) "Interties" are interconnections between public water systems permitting exchange or delivery of water between those systems for other than emergency supply purposes, where such exchange or delivery is within established instantaneous and annual withdrawal rates specified in the systems' existing water right permits or certificates, or contained in claims filed pursuant to chapter 90.14 RCW, and which results in better management of public water supply consistent with existing rights and obligations. Interties include interconnections between public water systems permitting exchange or delivery of water to serve as primary or secondary sources of supply or to provide water to benefit environmental resources, but do not include development of new sources of supply to meet future demand.

(b) "Service area" is the area designated in a water system plan or a coordinated water system plan pursuant to chapter 43.20 or 70.116 RCW respectively that includes the existing area served by the public water system and the future area planned to be served by the public water system. When a public water system does not have a designated service area subject to the approval process of those chapters, the service area shall be the designated place of use contained in the water right permit or certificate, or contained in the claim filed pursuant to chapter 90.14 RCW.

(3) Public water systems with interties existing and in use as of January 1, 1991, or that have received written approval from the department of health prior to that date, shall file written notice of those interties with the department of health and the department of ecology. The notice may be incorporated into the public water system's five-year update of its water system plan, but shall be filed no later than June 30, 1996. The notice shall identify the location of the intertie; the dates of its first use; the purpose, capacity, and current use; the intertie agreement of the parties and the service areas assigned; and other information reasonably necessary to modify the water right permit. Notwithstanding the provisions of RCW 90.03.380 and 90.44.100, for public water systems with interties existing and in use as of January 1, 1991, the department of ecology, upon receipt of notice meeting the requirements of this subsection, shall, as soon as practicable, modify the place of use descriptions in the water right permits, certificates, or claims to reflect the actual use through such interties, provided that the place of use is within service area designations established in a water system plan approved pursuant to chapter 43.20 RCW, or a coordinated water system plan approved pursuant to chapter 70.116 RCW, and further provided that the water used is within the instantaneous and annual withdrawal rates specified in the water right permit and that no outstanding complaints of impairment to existing water rights have been filed with the department of ecology prior to September 1, 1991. Where such complaints of impairment have been received, the department of ecology shall make all reasonable efforts to resolve them in a timely manner through agreement of the parties or through available administrative remedies.

(4) Notwithstanding the provisions of RCW 90.03.380 and 90.44.100, exchange or delivery of water through interties commencing use after January 1, 1991, shall be permitted when the intertie improves overall system reliability, enhances the manageability of the systems, provides opportunities for conjunctive use, ((or)) delays or avoids the need to develop new water sources, or benefits environmental resources, and otherwise meets the requirements of this section, provided that each public water system's water use shall not exceed the instantaneous or annual withdrawal rate specified in its water right authorization, shall not ((~~adversely affect~~)) impair existing water rights or lower stream flows below the flows necessary to adequately support food fish and game fish populations, and shall not be inconsistent with state-approved plans such as water system plans or other plans which include specific proposals for construction of interties. Interties commencing use after January 1, 1991, shall not be inconsistent with regional water resource plans developed pursuant to chapter 90.54 RCW.

(5) For public water systems subject to the approval process of chapter 43.20 RCW or chapter 70.116 RCW, proposals for interties commencing use after January 1, 1991, shall be incorporated into water system plans pursuant to chapter 43.20 RCW or coordinated water system plans pursuant to chapter 70.116 RCW and submitted to the department of health and the department of ecology for review and approval as provided for in subsections (5) through (9) of this section. The plan shall state how the proposed intertie will improve overall system reliability, enhance the manageability of the systems, provide opportunities for conjunctive use, ((or)) delay or avoid the need to develop new water sources, or benefit environmental resources.

(6) The department of health shall be responsible for review and approval of proposals for new interties. In its review the department of health shall determine whether the intertie satisfies the criteria of subsection (4) of this section, with the exception of water rights considerations, which are the responsibility of the department of ecology, and shall determine whether the intertie is necessary to address emergent public health or safety concerns associated with public water supply.

(7) If the intertie is determined by the department of health to be necessary to address emergent public health or safety concerns associated with public water supply, the public water system shall amend its water system plan as required and shall file an application with the department of ecology to change its existing water right to reflect the proposed use of the water as described in the approved water system plan. The department of ecology shall process the application for change pursuant to RCW 90.03.380 or 90.44.100 as appropriate, except that, notwithstanding the requirements of those sections regarding notice and protest periods, applicants shall be required to publish notice one time, and the comment period shall be fifteen days from the date of publication of the notice. Within sixty days of receiving the application, the department of ecology shall issue findings and advise the department of health if existing water rights are determined to be adversely affected. If no determination is provided by the department of ecology within the sixty-day period, the department of health shall proceed as if existing rights are not adversely affected by the proposed intertie. The department of ecology may obtain an extension of the sixty-day period by submitting written notice to the department of health and to the applicant indicating a definite date by which its determination will be made. No additional extensions shall be granted, and in no event shall the total review period for the department of ecology exceed one hundred eighty days.

(8) If the department of health determines the proposed intertie appears to meet the requirements of subsection (4) of this section but is not necessary to address emergent public health or safety concerns associated with public water supply, the department of health shall instruct the applicant to submit to the department of ecology an application for change to the underlying water right or claim as necessary to reflect the new place of use. The department of ecology shall consider the applications pursuant to the provisions of RCW 90.03.380 and 90.44.100 as appropriate. If in its review of proposed interties and associated water rights the department of ecology determines that additional information is required to act on the application, the department may request applicants to provide information necessary for its decision, consistent with agency rules and written guidelines. Parties disagreeing with the decision of the department of ecology on the application for change in place of use may appeal the decision to the pollution control hearings board.

(9) The department of health may approve plans containing intertie proposals prior to the department of ecology's decision on the water right application for change in place of use. However, notwithstanding such approval, construction work on the intertie shall not begin until the department of ecology issues the appropriate water right document to the applicant consistent with the approved plan.

NEW SECTION. Sec. 10. A new section is added to chapter 70.119A RCW to read as follows:

(1) The department shall develop comprehensive water conservation planning requirements for public water systems based upon system size, to be included in water system plans required under RCW 43.20.050. As part of these comprehensive planning requirements, water systems shall:

(a) Evaluate conservation measures and implement those that are cost-effective;

(b) Evaluate development and implementation of a leak detection and repair program;

(d) Collect and report minimum data to project water demand and to provide a basis for the accurate evaluation of the effectiveness of conservation programs; and

(e) Evaluate the use of rate structures to encourage conservation.

(2) The department shall:

(a) Review and approve water conservation plans, and monitor plan implementation to ensure compliance with comprehensive conservation planning requirements under subsection (1) of this section;

(b) Provide advice and technical assistance upon request in the development of water use efficiency plans, including development of best management practices for water conservation programs, model landscape ordinances, assistance to public water systems and local governments regarding water conservation, and general public education on water conservation and efficiency;

(c) Provide advice and technical assistance on request for development of model conservation rate structures for public water systems;

(d) Develop and maintain a statewide water consumption data base for the purpose of maintaining state records on water system source production and water consumption; and

(e) Adopt rules by December 31, 2003, to implement the provisions of this section.

NEW SECTION. Sec. 11. A new section is added to chapter 70.119A RCW to read as follows:

(1) The department shall, in consultation with the department of ecology and the office of community development, initiate negotiated rule making with interested parties to prepare draft rules that would establish water use efficiency performance measures for various water uses supplied by public water systems.

(2) The draft rules shall be completed by December 31, 2003, to be delivered and presented to the appropriate standing committees of the legislature during the 2004 legislative session.

(3) The draft rules shall:

(a) Describe the application of the water use efficiency performance measures to water demand forecasting, public water system planning, evaluating proposed transfers, changes, and amendments to existing water rights, and assessing whether new water rights are needed;

(b) Allow utilities to select best methods for achieving the measures;

(d) To the maximum extent practicable, identify measures that would vary according to size of system, expected rate of population growth, customer base demographics, scope of authority and jurisdiction of the utility, regional climate variations, and instream flow conditions in related water sources; and

(e) Establish criteria for identifying which measures apply to particular water systems as part of their approved water system plans. The criteria must take into consideration the level of conservation and efficiency present in the use of the system's water and the degree to which requiring additional conservation and efficiency remains cost‑effective. The criteria shall be sufficiently detailed to ensure that their application is reasonably predictable.

Sec. 12. RCW 90.48.495 and 1989 c 348 s 10 are each amended to read as follows:

The department of ecology shall require sewer plans that propose new or expanded treatment capacity to include ((~~a discussion~~)) an analysis of water conservation measures considered or underway and their anticipated impact on public sewer service. The plans shall evaluate the cost-effectiveness of funding water conservation programs as an alternative to increased sewage treatment capacity or to reduce the need for increased sewage treatment capacity.

Sec. 13. RCW 90.48.112 and 1997 c 444 s 9 are each amended to read as follows:

The evaluation of any plans submitted under RCW 90.48.110 must include consideration of opportunities for the use of reclaimed water as defined in RCW 90.46.010. Wastewater plans adopted under RCW 90.48.110 shall include a statement of certification by the responsible utility official that reclamation and reuse elements in applicable regional water supply plans and water system plans have been fully considered and accounted for with regard to the need for future distribution of reclaimed water.

NEW SECTION. Sec. 14. A new section is added to chapter 90.46 RCW to read as follows:

Water system plans and coordinated water system plans adopted under chapters 43.20 and 70.116 RCW shall be developed and coordinated to ensure that opportunities for reclaimed water are evaluated and that proposals for construction in public rights of way delineated within the plan consider infrastructure needed to distribute reclaimed water. The requirements of this section do not apply to water system plans developed pursuant to chapter 43.20 RCW for utilities serving less than one thousand service connections.

Sec. 15. RCW 90.46.010 and 2001 c 69 s 2 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Greywater" means wastewater having the consistency and strength of residential domestic type wastewater. Greywater includes wastewater from sinks, showers, and laundry fixtures, but does not include toilet or urinal waters.

(2) "Land application" means application of treated effluent for purposes of irrigation or landscape enhancement for residential, business, and governmental purposes.

(3) "Person" means any state, individual, public or private corporation, political subdivision, governmental subdivision, governmental agency, municipality, copartnership, association, firm, trust estate, or any other legal entity whatever.

(4) "Reclaimed water" means effluent derived in any part from sewage from a wastewater treatment system that has been adequately and reliably treated, so that as a result of that treatment, it is suitable for a beneficial use or a controlled use that would not otherwise occur and is no longer considered wastewater.

(5) "Sewage" means water-carried human wastes from residences, buildings, industrial and commercial establishments, or other places, together with such ground water infiltration, surface waters, or industrial wastewater as may be present.

(6) "User" means any person who uses reclaimed water.

(7) "Wastewater" means water and wastes discharged from homes, businesses, and industry to the sewer system.

(8) "Beneficial use" means the use of reclaimed water, that has been transported from the point of production to the point of use without an intervening discharge to the waters of the state, for a beneficial purpose.

(9) "Direct recharge" means the controlled subsurface addition of water directly to the ground water basin that results in the replenishment of ground water.

(10) "Ground water recharge criteria" means the contaminant criteria found in the drinking water quality standards adopted by the state board of health pursuant to chapter 43.20 RCW and the department of health pursuant to chapter 70.119A RCW.

(11) "Planned ground water recharge project" means any reclaimed water project designed for the purpose of recharging ground water, via direct recharge or surface percolation.

(12) "Reclamation criteria" means the criteria set forth in the water reclamation and reuse interim standards and subsequent revisions adopted by the department of ecology and the department of health.

(13) "Streamflow augmentation" means the discharge of reclaimed water to rivers and streams of the state or other surface water bodies, but not wetlands.

(14) "Surface percolation" means the controlled application of water to the ground surface for the purpose of replenishing ground water.

(15) "Wetland or wetlands" means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted to life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands regulated under this chapter shall be delineated in accordance with the manual adopted by the department of ecology pursuant to RCW 90.58.380.

(16) "Constructed beneficial use wetlands" means those wetlands intentionally constructed on nonwetland sites to produce or replace natural wetland functions and values. Constructed beneficial use wetlands are considered "waters of the state."

(17) "Constructed treatment wetlands" means those wetlands intentionally constructed on nonwetland sites and managed for the primary purpose of wastewater or storm water treatment. Constructed treatment wetlands are considered part of the collection and treatment system and are not considered "waters of the state."

(18) "Agricultural industrial process water" means water that has been used for the purpose of ((~~agriculture [agricultural]~~)) agricultural processing and has been adequately and reliably treated, so that as a result of that treatment, it is suitable for other agricultural water use.

(19) "Agricultural processing" means the processing of crops or milk to produce a product primarily for wholesale or retail sale for human or animal consumption, including but not limited to potato, fruit, vegetable, and grain processing.

(20) "Agricultural water use" means the use of water for irrigation and other uses related to the production of agricultural products. These uses include, but are not limited to, construction, operation, and maintenance of agricultural facilities and livestock operations at farms, ranches, dairies, and nurseries. Examples of these uses include, but are not limited to, dust control, temperature control, and fire control.

(21) "Industrial reuse water" means water that has been used for the purpose of industrial processing and has been adequately and reliably treated so that, as a result of that treatment, it is suitable for other uses.

Sec. 16. RCW 90.46.030 and 1992 c 204 s 4 are each amended to read as follows:

(1) The department of health shall, in coordination with the department of ecology, adopt a single set of standards, procedures, and guidelines on or before August 1, 1993, for the industrial and commercial use of reclaimed water.

(2) The department of health may issue a reclaimed water permit for industrial and commercial uses of reclaimed water to the generator of reclaimed water who may then distribute the water, subject to provisions in the permit governing the location, rate, water quality, and purposes of use.

(3) The department of health in consultation with the advisory committee established in RCW 90.46.050, shall develop recommendations for a fee structure for permits issued under subsection (2) of this section. Fees shall be established in amounts to fully recover, and not exceed, expenses incurred by the department of health in processing permit applications and modifications, monitoring and evaluating compliance with permits, and conducting inspections and supporting the reasonable overhead expenses that are directly related to these activities. Permit fees may not be used for research or enforcement activities. The department of health shall not issue permits under this section until a fee structure has been established.

(4) A permit under this section for use of reclaimed water may be issued only to a municipal, quasi-municipal, or other governmental entity or to the holder of a waste discharge permit issued under chapter 90.48 RCW.

(5) The authority and duties created in this section are in addition to any authority and duties already provided in law with regard to sewage and wastewater collection, treatment, and disposal for the protection of health and safety of the state's waters. Nothing in this section limits the powers of the state or any political subdivision to exercise such authority.

(6) The department of health may implement the requirements of this section through the department of ecology by execution of a formal agreement between the departments. Upon execution of such an agreement, the department of ecology may issue reclaimed water permits for industrial and commercial uses of reclaimed water by issuance of permits under chapter 90.48 RCW, and may establish and collect fees as required for permits issued under chapter 90.48 RCW.

Sec. 17. RCW 90.46.050 and 1995 c 342 s 9 are each amended to read as follows:

(1) The department of health shall, before July 1, 1995, form an advisory committee, in coordination with the department of ecology and the department of agriculture, which will provide technical assistance in the development of standards, procedures, and guidelines required by this chapter. Such committee shall be composed of individuals from the public water and wastewater utilities, landscaping enhancement industry, commercial and industrial application community, and any other persons deemed technically helpful by the department of health.

(2) Before July 1, 2003, the department of health shall reconvene an advisory committee, in coordination with the public works board and the department of ecology, to:

(a) Provide technical assistance in a review and update of the 1997 water reclamation and reuse standards, procedures, and guidelines required by this chapter, including a review of the need for the level of redundancy required;

(b) Identify obstacles to reclaimed water program development related to service area obligations, service area conflicts, rights to access and use waste streams, local versus state requirements, water rights, economics, and program funding, and make recommendations to the legislature on ways to remove those barriers; and

(c) Assist state agencies in developing public information, communication and outreach, and marketing information for water reclamation and reuse.

Sec. 18. RCW 90.46.130 and 2001 c 69 s 4 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, facilities that reclaim water under this chapter shall not impair any existing water right downstream from any freshwater discharge points of such facilities unless compensation or mitigation for such impairment is agreed to by the holder of the affected water right.

(2) Agricultural water use of agricultural industrial process water and use of industrial reuse water under this chapter shall not impair existing water rights within the water source that is the source of supply for the agricultural processing plant or the industrial processing and, if the water source is surface water, the existing water rights are downstream from the agricultural processing plant's discharge points existing on July 22, 2001, or from the industrial processing's discharge points existing on the effective date of this section.

NEW SECTION. Sec. 19. A new section is added to chapter 90.46 RCW to read as follows:

(1) The permit to use industrial reuse water shall be the permit issued under chapter 90.48 RCW to the owner of the plant that is the source of the industrial process water, who may then distribute the water according to provisions in the permit governing the location, rate, water quality, and purpose. In cases where the department of ecology determines that a proposed use may pose a significant risk to public health, the department shall refer the permit application to the department of health for review and consultation.

(2) The owner of the industrial plant who obtains a permit under this section has the exclusive right to the use of any industrial reuse water generated from the plant and to the distribution of such water. Use and distribution of the water by the owner is exempt from the permit requirements of RCW 90.03.250, 90.03.380, 90.44.060, and 90.44.100.

(3) Nothing in this section affects any right to reuse industrial process water in existence on or before the effective date of this section.

Sec. 20. RCW 90.03.380 and 2001 c 237 s 5 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 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 two years of greatest use within the most recent five-year period of continuous beneficial use of the water right. Such an "annual consumptive quantity" applies only to changes or transfers that add additional irrigated acres or add additional purposes to the right, and does not apply to other changes or transfers that do not add new acres or new purposes to the right, and does not define the extent of the 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 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)(a) For a water right held by a public water system, a change in the place of use of the water right shall not require the department's approval for the use of water within the water service areas in the public water system's water system plan approved under chapter 43.20 RCW or coordinated water system plan approved under chapter 70.116 RCW, as either plan may be amended from time to time.

(b) Development of any inchoate water right for use in an area outside of the place of use that would apply to the use of water under the right if not for this subsection (4) shall be accomplished only through the approval of a change or transfer of the inchoate right or a portion of the inchoate right that is needed to resolve or alleviate a public health or safety emergency caused by a failing public water supply system currently providing potable water to existing users or to benefit environmental resources. Inadequate water rights for a public water system to serve existing hookups or to accommodate future population growth or other future uses do not constitute a public health or safety emergency. The application for change or transfer of the inchoate water right must be filed specifically to correct the actual or anticipated cause of the public water system failure. To be considered a failing public water system, the department of health, in consultation with the department of ecology and the local health authority, must make a determination that the system meets one or more of the following conditions:

(i) A public water system has failed, or is in danger of failing within two years, to meet state board of health requirements for the delivery of potable water to existing users in adequate quantity or quality to meet basic human drinking, cooking, and sanitation needs;

(ii) The current water source has failed or will fail so that the public water system is or will become incapable of exercising its existing water right to meet existing needs for drinking, cooking, and sanitation purposes after all reasonable conservation efforts have been implemented; or

(iii) A change in source is required to meet drinking water quality standards and avoid unreasonable treatment costs, or the state department of health determines that the existing source of supply is unacceptable for human use.

The provisions of this subsection (4)(b) apply to the extent that such an inchoate right exists under the law applying before the effective date of this subsection (4)(b).

(5) Notwithstanding any other provision of this section, a water right to use surface or ground water that has been applied to any beneficial use within the general category of an agricultural use may be changed to another agricultural use, within the other limitations of the water right, under the following conditions:

(a) A change in the type of crop irrigated under an agricultural irrigation water right may be made without providing notice to the department and does not constitute a change in the purpose of use of the right;

(b) A change from one agricultural use to another agricultural use that does not involve a change in the season of use of the water may be made after notification to, but without the approval of, the department;

(c) A change from one agricultural use to another agricultural use that involves a change in the season of use of water may be made after providing notice and opportunity for review to the department as described in this subsection. For these changes, the water right holder shall give written notice to the department that includes information describing the proposed change and providing evidence of beneficial use of the right. The water right holder may proceed with the change unless the department notifies the water right holder within forty-five calendar days that the proposed change raises concerns regarding potential impairment to other water rights. The director may extend the forty-five day period by an additional thirty calendar days if notice is provided to the water right holder within the forty-five day period. The department shall operate under a rebuttable presumption of no impairment of other water rights if the season of use is proposed to be changed from a period that is more critical for other water rights and stream flows to a period that is less critical. If the department determines that the proposed change raises concerns regarding potential impairment to other water rights, the proposed change may not proceed under this subsection (5);

(d) The department's determination under (c) of this subsection is not appealable. For a change that is not allowed under (c) of this subsection, the water right holder may subsequently apply for a change in right under subsection (1) of this section or RCW 90.03.390 in which case the department shall make a full and normal determination and render an appealable decision under those statutes. In making such a decision, the department is not bound by its earlier determination and the earlier determination shall not result in a presumption of impairment of any water right; and

(e) The general category of an agricultural use of water under this subsection (5) is composed of, but not limited to, the beneficial uses of water for agricultural irrigation, frost protection, dust suppression, cleaning of agricultural animals, equipment, and facilities, and processing agricultural commodities.

(6) 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.

((~~(5)~~)) (7)(a) Pending applications for new water rights are not entitled to protection from impairment, injury, or detriment when an application relating to an existing surface or ground water right is considered.

(b) Applications relating to existing surface or ground water rights may be processed and decisions on them rendered independently of processing and rendering decisions on pending applications for new water rights within the same source of supply without regard to the date of filing of the pending applications for new water rights.

(c) Notwithstanding any other existing authority to process applications, including but not limited to the authority to process applications under WAC 173-152-050 as it existed on January 1, 2001, an application relating to an existing surface or ground water right may be processed ahead of a previously filed application relating to an existing right when sufficient information for a decision on the previously filed application is not available and the applicant for the previously filed application is sent written notice that explains what information is not available and informs the applicant that processing of the next application will begin. The previously filed application does not lose its priority date and if the information is provided by the applicant within sixty days, the previously filed application shall be processed at that time. This subsection ((~~(5)~~)) (7)(c) does not affect any other existing authority to process applications.

(d) Nothing in this subsection ((~~(5)~~)) (7) is intended to stop the processing of applications for new water rights.

((~~(6)~~)) (8) No applicant for a change, transfer, or amendment of a water right may be required to give up any part of the applicant's valid water right or claim to a state agency, the trust water rights program, or to other persons as a condition of processing the application.

((~~(7)~~)) (9) Changes, transfers, or amendments of surface or ground water rights to facilitate the conjunctive use of two or more water rights are governed by section 21 of this act.

(10) The purpose of use of a water right held for municipal water supply purposes includes, but is not limited to, using the water right to assist in providing instream flows.

(11) In revising the provisions of this section and adding provisions to this section by chapter 237, Laws of 2001, the legislature does not intend to imply legislative approval or disapproval of any existing administrative policy regarding, or any existing administrative or judicial interpretation of, the provisions of this section not expressly added or revised.

NEW SECTION. Sec. 21. A new section is added to chapter 90.03 RCW to read as follows:

The department may provide expedited processing for an application for a ground or surface water right or for a change, transfer, or amendment of an existing surface or ground water right that facilitates the conjunctive use by a water right holder of ground and surface water rights or of two or more ground water rights or of two or more surface water rights. The expedited processing may be provided if the conjunctive use does not impair water rights existing at the time the conjunctive use is initiated and the conjunctive use would change the season that all or a portion of an existing right is used so that there would be less competing demand for water from a surface water source during a season when water supply for stream flows is more critical. Such a change, transfer, or amendment may be provided without loss of priority.

Sec. 22. RCW 90.44.100 and 1997 c 316 s 2 are each amended to read as follows:

(1) 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 the holder's 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 the holder may change the manner or the place of use of the water.

(2) An amendment to construct replacement or a new additional well or wells at a location outside of the location of the original well or wells or to change the manner or place of use of the water 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: (a) The additional or replacement well or wells shall tap the same body of public ground water as the original well or wells except as provided in section 21 of this act; (b) where a replacement well or wells is approved, the use of the original well or wells shall be discontinued and the original well or wells shall be properly decommissioned as required under chapter 18.104 RCW; (c) where an additional well or wells is constructed, the original well or wells may continue to be used, but the combined total withdrawal from the original and additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and (d) 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.

(3) The construction of a replacement or new additional well or wells at the location of the original well or wells shall be allowed without application to the department for an amendment. However, the following apply to such a replacement or new additional well: (a) The well shall tap the same body of public ground water as the original well or wells; (b) if a replacement well is constructed, the use of the original well or wells shall be discontinued and the original well or wells shall be properly decommissioned as required under chapter 18.104 RCW; (c) if a new additional well is constructed, the original well or wells may continue to be used, but the combined total withdrawal from the original and additional well or wells shall not enlarge the right conveyed by the original water use permit or certificate; (d) the construction and use of the well shall not interfere with or impair water rights with an earlier date of priority than the water right or rights for the original well or wells; (e) the replacement or additional well shall be located no closer than the original well to a well it might interfere with; (f) the department may specify an approved manner of construction of the well; and (g) the department shall require a showing of compliance with the conditions of this subsection (3).

(4) As used in this section, the "location of the original well or wells" is the area described as the point of withdrawal in the original public notice published for the application for the water right for the well.

Sec. 23. RCW 43.21B.110 and 2001 c 220 s 2 are each amended to read as follows:

(1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:

(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.

(b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, and 90.56.330.

(c) Except as provided in RCW 90.03.210(2) and 90.03.380(5)(c), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.

(d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.

(e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.

(f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.

(g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.

(h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.

(2) The following hearings shall not be conducted by the hearings board:

(a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.

(b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.

(c) Proceedings conducted by the department, or the department's designee, under RCW 90.03.160 through 90.03.210 or 90.44.220.

(d) Hearings conducted by the department to adopt, modify, or repeal rules.

(3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

Sec. 24. RCW 90.14.140 and 2001 c 240 s 1, 2001 c 237 s 27, and 2001 c 69 s 5 are each reenacted and amended to read as follows:

(1) For the purposes of RCW 90.14.130 through 90.14.180, "sufficient cause" shall be defined as the nonuse of all or a portion of the water by the owner of a water right for a period of five or more consecutive years where such nonuse occurs as a result of:

(a) Drought, or other unavailability of water;

(b) Active service in the armed forces of the United States during military crisis;

(d) The operation of legal proceedings, including but not limited to foreclosure or bankruptcy proceedings or the processing of change, transfer, or amendment applications by the department of ecology that materially affect the exercise of the water right and prevent reasonable exercise of the right;

(e) Federal or state agency leases of or options to purchase lands or water rights which preclude or reduce the use of the right by the owner of the water right;

(f) Federal laws imposing land or water use restrictions either directly or through the voluntary enrollment of a landowner in a federal program implementing those laws, or acreage limitations, or production quotas;

(g) ((~~Temporarily~~)) Reduced water need for irrigation use where such reduction is due to varying weather conditions, including but not limited to precipitation and temperature, that warranted the reduction in water use, so long as the water user's diversion and delivery facilities are maintained in good operating condition consistent with beneficial use of the full amount of the water right;

(h) Temporarily reduced diversions or withdrawals of irrigation water directly resulting from the provisions of a contract or similar agreement in which a supplier of electricity buys back electricity from the water right holder and the electricity is needed for the diversion or withdrawal or for the use of the water diverted or withdrawn for irrigation purposes;

(i) Water conservation measures, including but not limited to such measures implemented under the Yakima river basin water enhancement project((~~, so long as~~)). With regard to water conservation measures implemented under the Yakima river basin water enhancement project, the conserved water ((is)) must be reallocated in accordance with the provisions of P.L. 103-434;

(j) Reliance by an irrigation water user on the transitory presence of return flows in lieu of diversion or withdrawal of water from the primary source of supply, if such return flows are measured or reliably estimated using a scientific methodology generally accepted as reliable within the scientific community; ((or))

(k) The reduced use of irrigation water resulting from crop rotation. For purposes of this subsection, crop rotation means the ((~~temporary~~)) short-term or long-term change in the type of crops grown ((~~resulting from the exercise of generally recognized sound farming practices~~)). Unused water resulting from crop rotation will not be relinquished if the remaining portion of the water continues to be beneficially used; or

(l) The department's processing of an application for a change or transfer under RCW 90.03.380 or of an amendment under RCW 90.44.100.

(2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right:

(a) If such right is claimed for power development purposes under chapter 90.16 RCW and annual license fees are paid in accordance with chapter 90.16 RCW;

(b) If such right is used for a standby or reserve water supply to be used in time of drought or other low flow period so long as withdrawal or diversion facilities are maintained in good operating condition for the use of such reserve or standby water supply;

(c) If such right is claimed for a determined future development to take place either within fifteen years of July 1, 1967, or the most recent beneficial use of the water right, whichever date is later;

(d) If such right is claimed for municipal water supply purposes under chapter 90.03 RCW. For purposes of this subsection and RCW 90.03.380(10), a water right is for municipal water supply purposes if the right is held by a governmental entity for the purpose of supplying, as a minimum, residential use or is held for future residential use;

(e) If such waters are not subject to appropriation under the applicable provisions of RCW 90.40.030;

(f) If such right or portion of the right is leased to another person for use on land other than the land to which the right is appurtenant as long as the lessee makes beneficial use of the right in accordance with this chapter and a transfer or change of the right has been approved by the department in accordance with RCW 90.03.380, 90.03.383, 90.03.390, or 90.44.100;

(g) If such a right or portion of the right is authorized for a purpose that is satisfied by the use of agricultural industrial process water as authorized under RCW 90.46.150; or

(h) If such right is a trust water right under chapter 90.38 or 90.42 RCW.

(3) In adding provisions to this section by chapter 237, Laws of 2001, the legislature does not intend to imply legislative approval or disapproval of any existing administrative policy regarding, or any existing administrative or judicial interpretation of, the provisions of this section not expressly added or revised.

Sec. 25. RCW 90.38.020 and 2001 c 237 s 28 are each amended to read as follows:

(1)(a) The department may acquire water rights, including but not limited to storage rights, by purchase, lease, gift, or other appropriate means other than by condemnation, from any person or entity or combination of persons or entities. Once acquired, such rights are trust water rights. A water right acquired by the state that is expressly conditioned to limit its use to instream purposes shall be administered as a trust water right in compliance with that condition.

(b) If ((~~an aquatic species is listed as threatened or endangered under federal law for a body of water, or is listed as depressed or threatened by reason of inadequate stream flows under state law, and~~)) the holder of a right to water from ((~~the~~)) a body of water chooses to donate all or a portion of the person's water right to the trust water system to assist in providing ((~~those~~)) instream flows on a temporary or permanent basis, the department shall accept the donation on such terms as the person may prescribe as long as the donation satisfies the requirements of subsection (4) of this section and the other applicable requirements of this chapter and the terms prescribed are relevant and material to protecting any interest in the water right retained by the donor. Once accepted, such rights are trust water rights within the conditions prescribed by the donor.

(2) The department may make such other arrangements, including entry into contracts with other persons or entities as appropriate to ensure that trust water rights acquired in accordance with this chapter can be exercised to the fullest possible extent.

(3) The trust water rights may be acquired on a temporary or permanent basis.

(4) A water right donated under subsection (1)(b) of this section shall not exceed the extent to which the water right was exercised during the five years before the donation nor may the total of any portion of the water right remaining with the donor plus the donated portion of the water right exceed the extent to which the water right was exercised during the five years before the donation. A water right holder who believes his or her water right has been impaired by a trust water right donated under subsection (1)(b) of this section may request that the department review the impairment claim. If the department determines that exercising the trust water right resulting from the donation or exercising a portion of that trust water right donated under subsection (1)(b) of this section is impairing existing water rights in violation of RCW 90.38.902, the trust water right shall be altered by the department to eliminate the impairment. Any decision of the department to alter or not alter a trust water right donated under subsection (1)(b) of this section is appealable to the pollution control hearings board under RCW 43.21B.230. A donated water right's status as a trust water right under this subsection is not evidence of the validity or quantity of the water right.

(5) Any water right conveyed to the trust water right system as a gift that is expressly conditioned to limit its use to instream purposes shall be managed by the department for public purposes to ensure that it qualifies as a gift that is deductible for federal income taxation purposes for the person or entity conveying the water right.

(6) If the department acquires a trust water right by lease in an area in which a drought order has been issued under RCW 43.83B.405 and is in effect at the time the department leases the water right, the amount of the trust water right shall not exceed the extent to which the water right was exercised during the five years before the acquisition was made nor may the total of any portion of the water right remaining with the original water right holder plus the portion of the water right leased by the department exceed the extent to which the water right was exercised during the five years before the acquisition. A water right holder who believes his or her water right has been impaired by a trust water right leased under this subsection may request that the department review the impairment claim. If the department determines that exercising the trust water right resulting from the leasing or exercising ((~~[of]~~)) of a portion of that trust water right leased under this subsection is impairing existing water rights in violation of RCW 90.38.902, the trust water right shall be altered by the department to eliminate the impairment. Any decision of the department to alter or not to alter a trust water right leased under this subsection is appealable to the pollution control hearings board under RCW 43.21B.230. The department's leasing of a trust water right under this subsection is not evidence of the validity or quantity of the water right.

(7) For a water right donated to or acquired by the trust water rights program on a temporary basis, the full quantity of water diverted or withdrawn to exercise the right before the donation or acquisition shall be placed in the trust water rights program and shall revert to the donor or person from whom it was acquired when the trust period ends.

Sec. 26. RCW 90.42.080 and 2001 c 237 s 31 are each amended to read as follows:

(1)(a) The state may acquire all or portions of existing water rights, by purchase, gift, or other appropriate means other than by condemnation, from any person or entity or combination of persons or entities. Once acquired, such rights are trust water rights. A water right acquired by the state that is expressly conditioned to limit its use to instream purposes shall be administered as a trust water right in compliance with that condition.

(b) If ((~~an aquatic species is listed as threatened or endangered under federal law for a body of water, or is listed as depressed or threatened by reason of inadequate stream flow under state law, and~~)) the holder of a right to water from ((~~the~~)) a body of water chooses to donate all or a portion of the person's water right to the trust water system to assist in providing ((~~those~~)) instream flows on a temporary or permanent basis, the department shall accept the donation on such terms as the person may prescribe as long as the donation satisfies the requirements of subsection (4) of this section and the other applicable requirements of this chapter and the terms prescribed are relevant and material to protecting any interest in the water right retained by the donor. Once accepted, such rights are trust water rights within the conditions prescribed by the donor.

(2) The department may enter into leases, contracts, or such other arrangements with other persons or entities as appropriate, to ensure that trust water rights acquired in accordance with this chapter may be exercised to the fullest possible extent.

(3) Trust water rights may be acquired by the state on a temporary or permanent basis.

(4) A water right donated under subsection (1)(b) of this section shall not exceed the extent to which the water right was exercised during the five years before the donation nor may the total of any portion of the water right remaining with the donor plus the donated portion of the water right exceed the extent to which the water right was exercised during the five years before the donation. A water right holder who believes his or her water right has been impaired by a trust water right donated under subsection (1)(b) of this section may request that the department review the impairment claim. If the department determines that exercising the trust water right resulting from the donation or exercising a portion of that trust water right donated under subsection (1)(b) of this section is impairing existing water rights in violation of RCW 90.42.070, the trust water right shall be altered by the department to eliminate the impairment. Any decision of the department to alter or not to alter a trust water right donated under subsection (1)(b) of this section is appealable to the pollution control hearings board under RCW 43.21B.230. A donated water right's status as a trust water right under this subsection is not evidence of the validity or quantity of the water right.

(5) The provisions of RCW 90.03.380 and 90.03.390 do not apply to donations for instream flows described in subsection (1)(b) of this section, but do apply to other transfers of water rights under this section.

(6) No funds may be expended for the purchase of water rights by the state pursuant to this section unless specifically appropriated for this purpose by the legislature.

(7) Any water right conveyed to the trust water right system as a gift that is expressly conditioned to limit its use to instream purposes shall be managed by the department for public purposes to ensure that it qualifies as a gift that is deductible for federal income taxation purposes for the person or entity conveying the water right.

(8) If the department acquires a trust water right by lease in an area in which a drought order has been issued under RCW 43.83B.405 and is in effect at the time the department leases the water right, the amount of the trust water right shall not exceed the extent to which the water right was exercised during the five years before the acquisition was made nor may the total of any portion of the water right remaining with the original water right holder plus the portion of the water right leased by the department exceed the extent to which the water right was exercised during the five years before the acquisition. A water right holder who believes his or her water right has been impaired by a trust water right leased under this subsection may request that the department review the impairment claim. If the department determines that exercising the trust water right resulting from the leasing or exercising ((~~[of]~~)) of a portion of that trust water right leased under this subsection is impairing existing water rights in violation of RCW 90.42.070, the trust water right shall be altered by the department to eliminate the impairment. Any decision of the department to alter or not to alter a trust water right leased under this subsection is appealable to the pollution control hearings board under RCW 43.21B.230. The department's leasing of a trust water right under this subsection is not evidence of the validity or quantity of the water right.

(9) For a water right donated to or acquired by the trust water rights program on a temporary basis, the full quantity of water diverted or withdrawn to exercise the right before the donation or acquisition shall be placed in the trust water rights program and shall revert to the donor or person from whom it was acquired when the trust period ends.

Sec. 27. RCW 90.03.370 and 2000 c 98 s 3 are each amended to read as follows:

(1)(a) All applications for reservoir permits ((~~shall be~~)) are subject to the provisions of RCW 90.03.250 through 90.03.320. But the party or parties proposing to apply to a beneficial use the water stored in any such reservoir shall also file an application for a permit, to be known as the secondary permit, which shall be in compliance with the provisions of RCW 90.03.250 through 90.03.320. Such secondary application shall refer to such reservoir as its source of water supply and shall show documentary evidence that an agreement has been entered into with the owners of the reservoir for a permanent and sufficient interest in said reservoir to impound enough water for the purposes set forth in said application. When the beneficial use has been completed and perfected under the secondary permit, the department shall take the proof of the water users under such permit and the final certificate of appropriation shall refer to both the ditch and works described in the secondary permit and the reservoir described in the primary permit. The department may accept for processing a single application form covering both a proposed reservoir and a proposed secondary permit or permits for use of water from that reservoir.

(b) The department shall expedite processing applications for the following types of storage proposals:

(i) Development of storage facilities that will not require a new water right for diversion or withdrawal of the water to be stored;

(ii) Adding or changing one or more purposes of use of stored water;

(iii) Adding to the storage capacity of an existing storage facility; and

(iv) Applications for secondary permits to secure use from existing storage facilities.

(c) The following types of storage facilities do not require a reservoir or secondary permit from the department for the storage and use of stored water:

(i) Rain barrels, cisterns, and other facilities for capturing runoff from roofs, paved areas, and other hard surfaces on a single residential, commercial, or industrial property or public facility when the total amount of storage does not exceed ten thousand gallons and the water stored is intended to be put to beneficial use;

(ii) Facilities to recapture and reuse return flow from irrigation operations when serving a single farm operation provided that the acreage irrigated is not increased beyond the acreage allowed to be irrigated under the water right that applies to the property;

(iii) Off-stream ponds filled from a separate source not exceeding ten acre-feet in capacity;

(iv) Excavated ponds not filled from a separate source, but rather from interception of the water table, and not exceeding ten acre-feet in capacity. However, if any consumptive use of water will be made other than direct stock drinking, a secondary permit is required;

(v) Storm water management facilities; and

(vi) Excavated municipal water reservoirs, water towers and other similar facilities that are integral to a water supply system's distribution system.

(d) The storage and use of water from facilities described in (c) of this subsection must not impair any water right or diminish stream flows.

(2)(a) For the purposes of this section, "reservoir" includes, in addition to any surface reservoir, any naturally occurring underground geological formation where water is collected and stored for subsequent use as part of an underground artificial storage and recovery project. To qualify for issuance of a reservoir permit an underground geological formation must meet standards for review and mitigation of adverse impacts identified, for the following issues:

(i) Aquifer vulnerability and hydraulic continuity;

(ii) Potential impairment of existing water rights;

(iii) Geotechnical impacts and aquifer boundaries and characteristics;

(iv) Chemical compatibility of surface waters and ground water;

(v) Recharge and recovery treatment requirements;

(vi) System operation;

(vii) Water rights and ownership of water stored for recovery; and

(viii) Environmental impacts.

(b) Standards for review and standards for mitigation of adverse impacts for an underground artificial storage and recovery project shall be established by the department by rule. Notwithstanding the provisions of RCW 90.03.250 through 90.03.320, analysis of each underground artificial storage and recovery project and each underground geological formation for which an applicant seeks the status of a reservoir shall be through applicant-initiated studies reviewed by the department.

(3) For the purposes of this section, "underground artificial storage and recovery project" means any project in which it is intended to artificially store water in the ground through injection, surface spreading and infiltration, or other department-approved method, and to make subsequent use of the stored water. However, (a) this subsection does not apply to irrigation return flow, or to operational and seepage losses that occur during the irrigation of land, or to water that is artificially stored due to the construction, operation, or maintenance of an irrigation district project, or to projects involving water reclaimed in accordance with chapter 90.46 RCW; and (b) RCW 90.44.130 applies to those instances of claimed artificial recharge occurring due to the construction, operation, or maintenance of an irrigation district project or operational and seepage losses that occur during the irrigation of land, as well as other forms of claimed artificial recharge already existing at the time a ground water subarea is established.

(4) Nothing in chapter 98, Laws of 2000 changes the requirements of existing law governing issuance of permits to appropriate or withdraw the waters of the state.

(5) The department shall report to the legislature by December 31, 2001, on the standards for review and standards for mitigation developed under subsection (3) of this section and on the status of any applications that have been filed with the department for underground artificial storage and recovery projects by that date.

(6) Where needed to ensure that existing storage capacity is effectively and efficiently used to meet multiple purposes, the department may authorize reservoirs to be filled more than once per year or more than once per season of use.

NEW SECTION. Sec. 28. A new section is added to chapter 90.44 RCW to read as follows:

The first choice of water supply for a new residential use of water is water service from a public water system serving fifteen or more residential hookups. To be the first choice, however, the water service must be available in a timely and cost‑effective manner. The operator of a public water system is able to provide service in a timely manner if the water can be provided within one hundred twenty days unless the requesting party asks for a longer period. An operator of a public water system is able to provide the service in a cost-effective manner if the total cost to obtain the water from the public water system, including but not limited to construction and engineering costs, connection fees, and operating costs, does not exceed one hundred twenty percent of the total cost of providing water service from a well under the permit exemption of RCW 90.44.050. If the water is provided by the public water system:

(1) The system shall notify the department and the department shall enlarge the place of use of the water right for the system by adding the place of the residential use;

(2) And if the source of water for one or more of the public water system's water rights is the ground water that would be a source of supply for the residence if water were supplied from a well under the exemption provided by RCW 90.44.050, the service by the public water system constitutes a consolidation of the water right of the system with the undeveloped right otherwise available under RCW 90.44.050. In such a case, the public water system shall notify the department and the department shall enlarge the water right for the system from that water source by eight hundred gallons of water per day with the priority date for the added portion of the consolidated right being the date water service was first provided for the residential use; and

(3) The exemption from permitting provided by RCW 90.44.050 is not available for that residential use.

NEW SECTION. Sec. 29. A new section is added to chapter 90.44 RCW to read as follows:

(1) It is the intent of the legislature to clarify the nature of the water rights for stock watering that may be established without a permit under RCW 90.44.050 before the effective date of this section and that may be established without a permit under RCW 90.44.050 on and after the effective date of this section.

(2) The legislature acknowledges that the exemption from permitting provided by RCW 90.44.050 before the effective date of this section for stock watering was not limited to five thousand gallons of water per day. This acknowledgment applies to the use of ground water provided directly or indirectly by the United States bureau of reclamation as part of a federal reclamation project only if the use of the water is also authorized by the bureau through a permit or license issued by the bureau or by the department through an agreement with the bureau.

On and after the effective date of this section, the exemption from permitting provided by RCW 90.44.050 for a new water right for stock watering is limited to five thousand gallons of water per day. On and after the effective date of this section, the quantity of water withdrawn under an existing water right established without a permit under the authority of RCW 90.44.050 for stock watering and established before the effective date of this section shall not be increased, unless the effect of the increase is to withdraw a total quantity of water under the right that is no greater than five thousand gallons a day.

NEW SECTION. Sec. 30. A new section is added to chapter 90.03 RCW to read as follows:

In considering an application for a water right permit or for a transfer, change, or amendment of an existing water right, the department must consider any instream flow requirements that have been established by rule for the source of water for the right or for water that is in hydraulic continuity with that source. However, the department may approve the application if, in addition to other requirements of law, water would be available at times of the year and over several years to satisfy the purpose or purposes of water use under the application.

NEW SECTION. Sec. 31. Section 29 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.