[atlas:bill]

AN ACT Relating to incentives for water-efficient irrigation systems; amending RCW 90.42.020 and 90.03.380; and adding new sections to chapter 90.42 RCW.

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

NEW SECTION. Sec. 1. A new section is added to chapter 90.42 RCW to read as follows:

The legislature finds that significant water savings could be realized through the installation of more efficient irrigation systems such as trickle irrigation systems where climatically and economically suitable. The legislature also finds that positive economic incentives, establishment of necessary legal procedures, and removal of legal barriers are needed to stimulate the development of workable technologies and farming systems that rely on lesser quantities of water.

The purpose of this act is to stimulate the use of water-efficient irrigation systems by allowing the saved water to be voluntarily transferred by the water right holder. Additionally, the purpose is to allow private, as well as public, investment to provide improved market-based incentives for adopting water saving technologies and to allow the benefits of the conserved water to be fully realized. It is the intent of this act that sufficient protections be provided to assure that existing water users are not adversely affected by transfers approved under this act.

Sec. 2. RCW 90.42.020 and 1991 c 347 s 6 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

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

(2) "Evaporative loss" is the amount of water consumed through evaporation or transpiration.

(3) "Net water savings" means the amount of water that is determined to be conserved and usable within a specified stream reach or reaches for other purposes without impairment or detriment to water rights existing at the time that a water conservation project is undertaken, reducing the ability to deliver water, or reducing the supply of water that otherwise would have been available to other existing water uses.

((~~(3)~~)) (4) "Trust water right" means any water right acquired by the state under this chapter for management in the state's trust water rights program.

((~~(4)~~)) (5) "Pilot planning areas" means the geographic areas designated under RCW 90.54.045(2).

((~~(5)~~)) (6) "Water conservation project" means any project or program that achieves physical or operational improvements that provide for increased water use efficiency in existing systems of diversion, conveyance, application, or use of water under water rights existing on July 28, 1991.

NEW SECTION. Sec. 3. A new section is added to chapter 90.42 RCW to read as follows:

(1) For purposes of this chapter, any person holding a valid water right may enter into a contract with any other person for the transfer of net water savings from installation of a water-efficient irrigation system financed by any party to the contract. A contract may be for a permanent or temporary transfer.

The transferred portion has the same date of priority as the water right from which it originated, but between them the transferred portion of the right is inferior in priority unless otherwise provided by the parties to the contract.

The department shall maintain with the certificate of water right a record of contracts for transferred water.

(2) In processing applications for transfers of portions of water rights under this section, if the department is unable to conclusively determine the validity of the original water right, the department may make a presumption of validity in respect to both the original water right and the portion that is transferred.

The presumption of validity may not be used as evidence as to the existence of the water right in an adjudication conducted under chapter 90.03 RCW.

(3) The department shall approve the transfer of the portion of net water savings that is a reduction in evaporative loss. The department shall also determine whether there are any additional net water savings that result directly from installation of the water-efficient irrigation system that can also be transferred.

(4) The department may adopt rules, in accordance with chapter 34.05 RCW, for procedures similar to those adopted under RCW 90.42.050 to be used to facilitate the processing of requests for water right transfers made under this section.

The rules may establish procedures for the department to make preliminary findings that can be used as an initial basis for developing contracts by applicants.

Sec. 4. RCW 90.03.380 and 1997 c 442 s 801 are each amended to read as follows:

(1) The right to the use of water which has been applied to a beneficial use in the state shall be and remain appurtenant to the land or place upon which the same is used((~~: PROVIDED, HOWEVER, That the~~)). However, all or a portion of a right may be transferred to another or to others and become appurtenant to any other land or place of use without loss of priority of right theretofore established if such change can be made without detriment or injury to existing rights. The point of diversion of water for beneficial use or the purpose of use may be changed, if such change can be made without detriment or injury to existing rights. A change in the place of use, point of diversion, and/or purpose of use of a water right to enable irrigation of additional acreage or the addition of new uses may be permitted if such change results in no increase in the annual consumptive quantity of water used under the water right. For purposes of this section, "annual consumptive quantity" means the estimated or actual annual amount of water diverted pursuant to the water right, reduced by the estimated annual amount of return flows, averaged over the most recent five-year period of continuous beneficial use of the water right. Before any transfer of such right to use water or change of the point of diversion of water or change of purpose of use can be made, any person having an interest in the transfer or change, shall file a written application therefor with the department, and the application shall not be granted until notice of the application is published as provided in RCW 90.03.280. If it shall appear that such transfer or such change may be made without injury or detriment to existing rights, the department shall issue to the applicant 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) 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.