AN
ACT Relating to water resources management; amending RCW 90.82.040, 90.82.130,
90.03.380, 90.80.005, 90.80.010, 90.80.050, 90.80.070, 90.80.080, 90.80.090,
90.80.100, 90.80.120, 90.80.130, 90.80.140, 90.80.150, 90.66.040, 90.66.060,
90.14.140, 90.38.020, 90.38.040, 90.42.040, and 90.42.080; adding a new section
to chapter 90.82 RCW; adding new sections to chapter 90.80 RCW; adding a new
section to chapter 90.66 RCW; adding a new section to chapter 82.16 RCW;
creating new sections; prescribing penalties; providing an expiration date; and
declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature is committed to meeting the needs of a growing population and a
healthy economy statewide; to meeting the needs of fish and healthy watersheds
statewide; and to advancing these two principles together, in increments over
time.
The
legislature finds that improved management of the state's water resources,
clarifying the authorities, requirements, and timelines for establishing
instream flows, providing timely decisions on water transfers, clarifying the
authority of water conservancy boards, and enhancing the flexibility of our
water management system to meet both environmental and economic goals are
important steps to providing a better future for our state.
The
need for these improvements is particularly urgent as we are faced with drought
conditions. The failure to act now will only increase the potential negative
effects on both the economy and the environment, including fisheries resources.
Deliberative
action over several legislative sessions and interim periods between sessions
will be required to address the long-term goal of improving the responsiveness
of the state water code to meet the diverse water needs of the state's
citizenry. It is the intent of the legislature to begin this work now by
providing tools to enable the state to respond to imminent drought conditions
and other immediate problems relating to water resources management. It is
also the legislature's intent to lay the groundwork for future legislation for
addressing the state's long-term water problems.
Sec.
2. RCW
90.82.040 and 1998 c 247 s 1 are each amended to read as follows:
(1)
Once a WRIA planning unit has been initiated under RCW 90.82.060 and a lead
agency has been designated, it shall notify the department and may apply to the
department for funding assistance for conducting the planning. Funds shall be
provided from and to the extent of appropriations made by the legislature to
the department expressly for this purpose.
(2)(a)
Each planning unit that has complied with subsection (1) of this section is
eligible to receive watershed planning grants in the following amounts for
three phases of watershed planning:
(((a)))
(i) Initiating governments may apply for an initial organizing grant of
up to fifty thousand dollars for a single WRIA or up to seventy-five thousand
dollars for a multi-WRIA management area in accordance with RCW 90.82.060(4);
(((b)))
(ii)(A) A planning unit may apply for up to two hundred thousand dollars
for each WRIA in the management area for conducting watershed assessments in
accordance with RCW 90.82.070, except that a planning unit that chooses to
conduct a detailed assessment or studies under (a)(ii)(B) of this subsection or
whose initiating governments choose or have chosen to include an instream flow
or water quality component in accordance with RCW 90.82.080 or 90.82.090 may
apply for up to one hundred thousand additional dollars for each instream flow
and up to one hundred thousand additional dollars for each water quality
component included for each WRIA to conduct an assessment on that optional
component and for each WRIA in which the assessments or studies under
(a)(ii)(B) of this subsection are conducted.
(B)
A planning unit may elect to apply for up to one hundred thousand additional
dollars to conduct a detailed assessment of multipurpose water storage
opportunities or for studies of specific multipurpose storage projects which
opportunities or projects are consistent with and support the other elements of
the planning unit's watershed plan developed under this chapter; and
(((c)))
(iii) A planning unit may apply for up to two hundred fifty thousand
dollars for each WRIA in the management area for developing a watershed plan
and making recommendations for actions by local, state, and federal agencies,
tribes, private property owners, private organizations, and individual
citizens, including a recommended list of strategies and projects that would
further the purpose of the plan in accordance with RCW 90.82.060 through
90.82.100.
(b)
A planning unit may request a different amount for phase two or phase three of
watershed planning than is specified in (a) of this subsection, provided that
the total amount of funds awarded do not exceed the maximum amount the planning
unit is eligible for under (a) of this subsection. The department shall
approve such an alternative allocation of funds if the planning unit identifies
how the proposed alternative will meet the goals of this chapter and provides a
proposed timeline for the completion of planning. However, the up to one
hundred thousand additional dollars in funding for instream flow and water
quality components and for water storage assessments or studies that a planning
unit may apply for under (a)(ii)(A) of this subsection may be used only for
those instream flow, water quality, and water storage purposes.
(c)
By December 1, 2001, or within one year of initiating phase one of watershed
planning, whichever occurs later, the initiating governments for each planning
unit must inform the department whether they intend to have the planning unit
establish or amend instream flows as part of its planning process. If they
elect to have the planning unit establish or amend instream flows, the planning
unit is eligible to receive one hundred thousand dollars for that purpose in
accordance with (a)(ii) of this subsection. If the initiating governments for
a planning unit elect not to establish or amend instream flows as part of the
unit's planning process, the department shall retain one hundred thousand
dollars to carry out an assessment to support establishment of instream flows
and to establish such flows in accordance with RCW 90.54.020(3)(a) and chapter
90.22 RCW. The department shall not use these funds to amend an existing
instream flow unless requested to do so by the initiating governments for a
planning unit.
(d)
In administering funds appropriated for supplemental funding for optional plan
components under (a)(ii) of this subsection, the department shall give priority
in granting the available funds to proposals for setting or amending instream
flows.
(3)(a)
The department shall use the eligibility criteria in this subsection (3)
instead of rules, policies, or guidelines when evaluating grant applications at
each stage of the grants program.
(b)
In reviewing grant applications under this subsection (3), the department shall
evaluate whether:
(i)
The planning unit meets all of the requirements of this chapter;
(ii)
The application demonstrates a need for state planning funds to accomplish the
objectives of the planning process; and
(iii)
The application and supporting information evidences a readiness to proceed.
(c)
In ranking grant applications submitted at each stage of the grants program,
the department shall give preference to applications in the following order of
priority:
(i)
Applications from existing planning groups that have been in existence for at
least one year;
(ii)
Applications that address protection and enhancement of fish habitat in
watersheds that have aquatic fish species listed or proposed to be listed as
endangered or threatened under the federal endangered species act, 16 U.S.C.
Sec. 1531 et seq. and for which there is evidence of an inability to supply
adequate water for population and economic growth from:
(A)
First, multi-WRIA planning; and
(B)
Second, single WRIA planning;
(iii)
Applications that address protection and enhancement of fish habitat in
watersheds or for which there is evidence of an inability to supply adequate
water for population and economic growth from:
(A)
First, multi-WRIA planning; and
(B)
Second, single WRIA planning.
(d)
The department may not impose any local matching fund requirement as a
condition for grant eligibility or as a preference for receiving a grant.
(4)
The department may retain up to one percent of funds allocated under this
section to defray administrative costs.
(5)
Planning under this chapter should be completed as expeditiously as possible,
with the focus being on local stakeholders cooperating to meet local needs.
(6)
Funding provided under this section shall be considered a contractual
obligation against the moneys appropriated for this purpose.
NEW
SECTION. Sec. 3. A
new section is added to chapter 90.82 RCW to read as follows:
By
October 1, 2001, the department of ecology shall complete a final nonproject
environmental impact statement that evaluates stream flows to meet the
alternative goals of maintaining, preserving, or enhancing instream resources
and the technically defensible methodologies for determining these stream
flows. Planning units and state agencies assessing and setting or amending
instream flows must, as a minimum, consider the goals and methodologies
addressed in the nonproject environmental impact statement. A planning unit or
state agency may assess, set, or amend instream flows in a manner that varies
from the final nonproject environmental impact statement if consistent with
applicable instream flow laws.
Sec.
4. RCW
90.82.130 and 1998 c 247 s 9 are each amended to read as follows:
(1)(a)
Upon completing its proposed watershed plan, the planning unit may approve the
proposal by consensus of all of the members of the planning unit or by
consensus among the members of the planning unit appointed to represent units
of government and a majority vote of the nongovernmental members of the planning
unit.
(b)
If the proposal is approved by the planning unit, the unit shall submit the
proposal to the counties with territory within the management area. If the
planning unit has received funding beyond the initial ((fifty thousand
dollars)) organizing grant under RCW 90.82.040, such a proposal
approved by the planning unit shall be submitted to the counties within four
years of the date ((the)) that funds beyond the initial funding
((was)) are first ((received)) drawn upon by the
planning unit.
(c)
If the watershed plan is not approved by the planning unit, the planning unit
may submit the components of the plan for which agreement is achieved using the
procedure under (a) of this subsection, or the planning unit may terminate the
planning process.
(2)(a)
The legislative authority of each of the counties with territory in the
management area shall provide public notice of and conduct at least one public
hearing on the proposed watershed plan submitted under this section. After the
public hearings, the legislative authorities of these counties shall convene in
joint session to consider the proposal. The counties may approve or reject the
proposed watershed plan for the management area, but may not amend it.
Approval of such a proposal shall be made by a majority vote of the members of
each of the counties with territory in the management area.
(b)
If a proposed watershed plan is not approved, it shall be returned to the
planning unit with recommendations for revisions. Approval of such a revised
proposal by the planning unit and the counties shall be made in the same manner
provided for the original watershed plan. If approval of the revised plan is
not achieved, the process shall terminate.
(3)
The planning unit shall not add an element to its watershed plan that creates
an obligation unless each of the governments to be obligated has at least one
representative on the planning unit and the respective members appointed to
represent those governments agree to adding the element that creates the
obligation. A member's agreeing to add an element shall be evidenced by a
recorded vote of all members of the planning unit in which the members record
support for adding the element. If the watershed plan is approved under
subsections (1) and (2) of this section and the plan creates obligations: (a)
For agencies of state government, the agencies shall adopt by rule the
obligations of both state and county governments and rules implementing the
state obligations, the obligations on state agencies are binding upon adoption
of the obligations into rule, and the agencies shall take other actions to
fulfill their obligations as soon as possible; or (b) for counties, the
obligations are binding on the counties and the counties shall adopt any
necessary implementing ordinances and take other actions to fulfill their
obligations as soon as possible.
(4)
As used in this section, "obligation" means any action required as a
result of this chapter that imposes upon a tribal government, county
government, or state government, either: A fiscal impact; a redeployment of
resources; or a change of existing policy.
Sec.
5. 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 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.
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.
(5)(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)(c) does not affect any other existing authority to process
applications.
(d)
Nothing in this subsection (5) is intended to stop the processing of
applications for new water rights.
(6)
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)
In revising the provisions of this section and adding provisions to this
section by this act, 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.
6. RCW
90.80.005 and 1997 c 441 s 1 are each amended to read as follows:
The
legislature finds:
(1)
Voluntary water right transfers ((between water users)) can
reallocate water use in a manner that will result in more efficient use of
water resources;
(2)
Voluntary water right transfers can help alleviate water shortages, save
capital outlays, reduce development costs, and provide an incentive for
investment in water conservation efforts by water right holders; and
(3)
The state should expedite the administrative process for ((noncontested))
water right transfers ((among water right holders, conveying greater
operational control to water managers and water right holders)) by
authorizing the establishment of water conservancy boards.
Sec.
7. RCW
90.80.010 and 1997 c 441 s 2 are each amended to read as follows:
The
following definitions apply throughout this chapter, unless the context clearly
requires otherwise.
(1)
"Board" means a water conservancy board created under this chapter.
(2)
"Commissioner" means a member of a water conservancy board.
(3)
"Department" means the department of ecology.
(4)
"Director" means the director of the department of ecology.
(5)
"Record of decision" means the conclusion reached by a water
conservancy board regarding an application for a transfer filed with the board.
(6)
"Transfer" means a transfer, change, amendment, or other alteration
of a part or all of a water right authorized under RCW 90.03.380, 90.03.390, or
90.44.100.
NEW
SECTION. Sec. 8. A
new section is added to chapter 90.80 RCW to read as follows:
(1)
If a county is the only county having lands comprising a water resource
inventory area as defined in chapter 173-500 WAC, the county may elect to
establish a water conservancy board for the water resource inventory area,
rather than for the entire county.
(2)
Counties having lands within a water resource inventory area may jointly
petition the department for establishment of a water conservancy board for the
water resource inventory area. Counties may jointly petition the department to
establish boards serving multiple counties or one or more water resource
inventory areas. For any of these multicounty options, the counties must reach
their joint determination on the decision to file the petition, on the
proposed bylaws, and on other matters relating to the establishment and
operation of the board in accordance with the provisions of this chapter and
chapter 39.34 RCW, the interlocal cooperation act. Each county must meet the
requirements of RCW 90.80.020(2). The counties must jointly determine the sufficiency
of a petition under RCW 90.80.020(3) and each county legislative authority must
hold a hearing in its county.
(3)
If establishment of a multicounty water conservancy board under any of the
options provided in subsection (2) of this section is approved by the
department, the counties must jointly appoint the board commissioners and
jointly appoint members to fill vacancies as they occur in accordance with the
provisions of this chapter and chapter 39.34 RCW.
(4)
A board established for more than one county or for one or more water resource
inventory areas has the same powers as other boards established under this
chapter. The board has no jurisdiction outside the boundaries of the water
resource inventory area or areas or the county or counties, as applicable, for
which it has been established, except as provided in this chapter.
(5)
The counties establishing a board for a multiple county area must designate a
lead county for purposes of providing a single point of contact for
communications with the department. The lead county shall forward the
information required in RCW 90.80.030(1) for each county.
NEW
SECTION. Sec. 9. A
new section is added to chapter 90.80 RCW to read as follows:
(1)
Except as provided in subsection (2) of this section, a board shall operate on
a countywide basis or on an areawide basis in the case of a board with
jurisdiction in more than one county or water resource inventory area, and have
the following powers, in addition to any other powers granted in this chapter:
(a)
Except as provided in subsection (2) of this section, a board may act upon
applications for the same kinds of transfers that the department itself is
authorized to act upon, including an application to establish a trust water
right under chapter 90.38 or 90.42 RCW. A board may not act upon an
application for the type of transfer within an irrigation district as described
in RCW 90.03.380(3). If a board receives an application for a transfer between
two irrigation districts as described in RCW 90.03.380(2), the board must,
before publication of notice of the application, receive the concurrence
specified in that section.
(b)
A board may act upon an application to transfer a water right claim filed under
chapter 90.14 RCW. In acting upon such an application, the board must make a
tentative determination as to the validity and extent of the right, if any,
embodied in the claim and may only issue a record of decision regarding a
transfer of such a claim to the extent it is tentatively determined to be
valid. Neither the board's tentative determination, nor the director's
acceptance of such a tentative determination, constitutes an adjudication of
the right under RCW 90.03.110 through 90.03.240 or 90.44.220, and such a determination
does not preclude or prejudice a subsequent challenge to the validity,
priority, or quantity of the right in a general adjudication under those
sections.
(c)
A board may establish a water right transfer information exchange through which
all or part of a water right may be listed for sale or lease. The board may
also accept and post notices in the exchange from persons interested in
acquiring or leasing water rights from willing sellers.
(d)
The director shall assign a representative of the department to provide
technical assistance to each board. If requested by the board, the
representative shall work with the board as it reviews applications for formal
acceptance, prepares draft records of decision, and considers other technical
or legal factors affecting the board's development of a final record of
decision. A board may request and accept additional technical assistance from
the department. A board may also request and accept assistance and support
from the county government or governments of the county or counties in which it
operates.
(2)
The jurisdiction of a board shall not apply within the boundaries of a federal
Indian reservation or to lands held in trust for an Indian band, tribe, or
nation by the federal government.
Sec.
10. RCW
90.80.050 and 1997 c 441 s 6 are each amended to read as follows:
(1)
A water conservancy board constitutes a public body corporate and politic and a
separate unit of local government in the state. Each board shall consist of three
commissioners appointed by the county legislative authority or authorities
as applicable for six-year terms. The county legislative authority or
authorities shall stagger the initial appointment of commissioners so that
the first commissioners who are appointed shall serve terms of two, four, and
six years, respectively, from the date of their appointment. The county
legislative authority or authorities may appoint two additional commissioners,
for a total of five. If the county or counties elect to appoint five
commissioners, the initial terms of the additional commissioners shall be for
three and five-year terms respectively. All vacancies shall be filled for
the unexpired term.
(2)
The county legislative authority or authorities shall consider, but ((is))
are not limited in appointing, nominations to the board by people or
entities petitioning or requesting the creation of the board. ((However,))
The county legislative authority or authorities shall ensure that
at least one commissioner is an individual water right holder((s))
who diverts or withdraws water for use within the ((county are
represented on)) area served by the board. The county
legislative authority or authorities must appoint one person who is not a water
right holder. If the county legislative authority or authorities choose not to
appoint five commissioners, and as of the effective date of this section there
is no commissioner on an existing board who is not a water right holder, the
county or counties are not required to appoint a new commissioner until the
first vacancy occurs. In making appointments to the board, the county
legislative authority or authorities shall choose from among persons who
are residents of the county or counties or a county that is contiguous
to the county that the water conservancy board is to serve.
(3)
No commissioner may participate in a record of decision of a board ((decisions))
until he or she has successfully completed the necessary training required
under RCW 90.80.040. Commissioners shall serve without compensation, but are
entitled to reimbursement for necessary travel expenses in accordance with RCW
43.03.050 and 43.03.060 and costs incident to receiving training.
Sec.
11. RCW
90.80.070 and 1997 c 441 s 9 are each amended to read as follows:
(1)
A person proposing a transfer of a water right may elect to file an
application with a water conservancy board, if a board has been established for
the geographic area where the water is or would be diverted, withdrawn, or
used. If the person has already filed an application with the department, the
person may request that the department convey the application to the conservancy
board with jurisdiction and the department must promptly forward the
application. A board is not required to process an application filed with the
board. If a board decides that it will not process an application, it must
return the application to the applicant and must inform the applicant that the
application may be filed with the department. An application((s))
to the board for a transfer((s)) shall be made on a form provided
by the department((, and shall contain such)). A board may require
an applicant to submit within a reasonable time additional information as
may be required by the board in order to review and act upon the application.
At a minimum, the application shall include information sufficient to establish
to the board's satisfaction ((of the transferor's)) that a right
to the quantity of water being transferred exists, and a description of
any applicable limitations on the right to use water, including the point of
diversion or withdrawal, place of use, source of supply, purpose of use,
quantity of use permitted, time of use, period of use, and the place of
storage.
(2)
The ((transferor and the transferee of)) applicant for any
proposed water right transfer may apply to a board for ((approval of
the)) a record of decision on a transfer if the water proposed to be
transferred is currently diverted, withdrawn, or used within the
geographic ((boundaries of the county)) area in which the board has
jurisdiction, or would be diverted, withdrawn, or used within the
geographic ((boundaries of the county)) area in which the board has
jurisdiction if the transfer is approved. In the case of a proposed water right
transfer in which the water is currently diverted or withdrawn or would
be diverted or withdrawn outside the geographic boundaries of the county
or the water resource inventory area where the use is proposed to be made,
the board shall hold a public hearing in the county of the diversion or
withdrawal or proposed diversion or withdrawal. The board shall
provide for prominent publication of notice of ((such)) the
hearing in a newspaper of general circulation published in the county in which
the hearing is to be held for the purpose of affording an opportunity for
interested persons to comment upon the application. If an application is
for a transfer of water out of the water resource inventory area that is the
source of the water, the board shall consult with the department regarding the
application.
(3)
After an application for a transfer is filed with the board, the board shall
publish notice of the application ((in accordance with the publication
requirements)) and send notice to state agencies ((as provided in)) in
accordance with the requirements of RCW 90.03.280. In addition, the
board shall send notice of the application to any Indian tribe with reservation
lands that would be, but for section 9(2) of this act, within the area in which
the board has jurisdiction. The board shall also provide notice of the
application to any Indian tribe that has requested that it be notified of
applications. Any person may submit comments and other information
to the board regarding the application. ((Any water right holder claiming
detriment or injury to an existing water right may intervene in the application
before the board pursuant to subsection (4) of this section. If a majority of
the board determines that the application is complete, in accordance with the
law and the transfer can be made without injury or detriment to existing water
rights in accordance with RCW 90.03.380, the board shall issue the applicant a
certificate conditionally approving the transfer, subject to review by the
director.
(4)
If a water right holder claims a proposed transfer will cause an impairment to
that right, the water right holder is entitled to a hearing before the board.
The board shall receive such evidence as it deems material and necessary to
determine the validity of the claim of impairment. If the party claiming the
impairment establishes by a preponderance of the evidence that his or her water
right will be impaired by the proposed transfer, the board may not approve the
transfer unless the applicant and the impaired party agree upon compensation
for the impairment.)) The comments and
information may be submitted in writing or verbally at any public meeting of
the board to discuss or decide on the application. The comments must be
considered by the board in making its record of decision.
(4)
If a majority of the board determines that the application is complete, and
that the transfer is in accordance with RCW 90.03.380, 90.03.390, or 90.44.100,
the board must issue a record of decision approving the transfer, subject to
review by the director. In making its record of decision, the board must
consider among other things whether the proposed transfer can be made without
detriment or injury to existing water rights, including rights established for
instream flows. The board must include in its record of decision any
conditions that are deemed necessary for the transfer to qualify for approval
under the applicable laws of the state. The basis for the record of decision
of the board must be documented in a report of examination. The board's
proposed approval must clearly state that the applicant is not permitted to
proceed to effect the proposed transfer until a final decision is made by the
director. In making its record of decision, the board must consider among
other things whether the proposed transfer can be made without detriment or
injury to existing water rights, including rights established for instream
flows.
(5)
If a majority of the board determines that the application cannot be approved
under the applicable laws of the state of Washington, the board must make a
record of decision denying the application together with its report of
examination documenting its record of decision. The board's record of decision
is subject to review by the director under RCW 90.80.080.
Sec.
12. RCW
90.80.080 and 1997 c 441 s 11 are each amended to read as follows:
(1)
((If a transfer is approved by the board,)) The board must provide a
copy of its record of decision to the applicant. The board shall submit ((a
copy of the proposed certificate conditionally approving)) its record of
decision on the transfer application to the department for review.
The board shall also submit ((a)) its report of examination to
the department summarizing ((any)) factual findings on which the
board relied in ((deciding to approve the proposed transfer)) reaching
its record of decision and a copy of the files and records upon which the
board's record of decision is based. The board shall also promptly
transmit notice by mail to any person who objected to the transfer or who
requested notice of the board's record of decision.
(2)
Upon receipt of a board's record of decision, the department shall promptly
post the text of the record of decision transmittal form on the department's
internet site. The director shall review each ((proposed transfer
conditionally approved)) record of decision made by a board for
compliance with applicable state water ((transfer laws including RCW
90.03.380, 90.03.390, and 90.44.100, rules and guidelines adopted by the
department, and other applicable)) law.
(3)
Any party to a transfer ((or a)), third party who alleges his or
her water right will be impaired by the proposed transfer, or other person
may file ((objections)) a letter of concern or support with the
department and the department may consider the concern or support expressed
in the letter. ((If objections to the transfer are filed with the
department, the board shall forward the files and records upon which it based
its decision to the department.)) Such letters must be received by the
department within thirty days of the department's receipt of the board's record
of decision.
(4)
The director shall review the ((action)) record of decision of
the board and shall affirm, reverse, or modify the action of the board
within forty-five days of receipt. The forty-five day time period may be
extended for an additional thirty days by the director((, upon the consent
of the parties to the transfer)) or at the request of the board or
applicant. If the director fails to act within ((this)) the
prescribed time period, the board's ((action is final. Upon approval of
a water transfer by the action or nonaction of the director, the conditional
certificate issued by the board is final and valid)) record of decision
becomes the decision of the department and is appealable as provided by RCW
90.80.090. If the director acts within the prescribed time period, the
director's decision to affirm, modify, or reverse is appealable as provided by
RCW 90.80.090, and the director's decision to remand is appealable as provided
by RCW 90.80.120(2)(b).
Sec.
13. RCW
90.80.090 and 1997 c 441 s 12 are each amended to read as follows:
The
decision of the director to approve or deny an action to create a board,
or to approve, deny, or modify a water right transfer either by action
or ((nonaction shall be)) inaction is appealable in the same
manner as other water right decisions made pursuant to chapters 90.03 and
90.44 RCW.
Sec.
14. RCW
90.80.100 and 1997 c 441 s 13 are each amended to read as follows:
Neither
the county ((nor)) or counties, the department, a conservancy
board, or its employees, nor individual conservancy board commissioners
shall be subject to any cause of action or claim for damages arising out of records
of decisions on transfers ((approved)) made by a board under
this chapter.
Sec.
15. RCW
90.80.120 and 1997 c 441 s 16 are each amended to read as follows:
(1)
A commissioner of a water conservancy board ((who has an ownership interest
in a water right subject to an application for approval of a transfer or change
by the board, shall not participate in the board's review or decision upon the
application)) shall not engage in any act which is in conflict with the
proper discharge of the official duties of a commissioner. A commissioner is
deemed to have a conflict of interest if he or she:
(a)
Has an ownership interest in a water right subject to an application for
approval before the board;
(b)
Receives or has a financial interest in an application submitted to the board
or a project, development, or venture related to the approval of the
application; or
(c)
Solicits, accepts, or seeks anything of economic value as a gift, gratuity, or
favor from any person, firm, or corporation involved in the application.
(2)
((A commissioner of a water conservancy board who also serves as an employee
or upon the governing body of a municipally owned water system, shall not
participate in the board's review or decision upon an application for the
transfer or change of a water right in which that water system has or is
proposed to have an ownership interest.)) The department shall return a
record of decision to a conservancy board without action where the department
determines that any member of a board has violated subsection (1) of this
section.
(a)
If a person seeking to rely on this section to disqualify a commissioner knows
of the basis for disqualification before the time the board issues a record of
decision, the person must request the board to have the commissioner recuse himself
or herself from further involvement in processing the application, or be barred
from later raising that challenge.
(b)
If the commissioner does not recuse himself or herself or if the person becomes
aware of the basis for disqualification after the board issues a record of
decision but within the time period under RCW 90.80.080(3) for filing
objections with the department, the person must raise the challenge with the
department. If the department determines that the commissioner should be
disqualified under this section, the director must remand the record of
decision to the board for reconsideration and resubmission of a record of
decision. The disqualified commissioner shall not participate in any further
board review of the application. The department's decision on whether to
remand a record of decision under this section may only be appealed at the same
time and in the same manner as an appeal of the department's decision to
affirm, modify, or reverse the record of decision after remand.
(c)
If the person becomes aware of the basis for disqualification after the time
for filing objections with the department, the person may raise the challenge
in an appeal of the department's final decision under RCW 90.80.090.
NEW
SECTION. Sec. 16. A
new section is added to chapter 90.80 RCW to read as follows:
A
water conservancy board may be formally dissolved by the county or jointly by
the counties as applicable in which it operates by adoption of a resolution of
the county legislative authority or authorities. Notice of the dissolution
must be provided to the director. The department may petition the county
legislative authority of the county or the lead county for a board to request
that the board be dissolved for repeated statutory violations or demonstrated
inability to perform the functions for which the board was created.
Sec.
17. RCW
90.80.130 and 1997 c 441 s 17 are each amended to read as follows:
Water
conservancy board activities are subject to the open public meetings act,
chapter 42.30 RCW and to chapter 42.32 RCW. This includes announcing
meetings in advance.
NEW
SECTION. Sec. 18. A
new section is added to chapter 90.80 RCW to read as follows:
(1)
A board is subject to the requirements of chapter 42.17 RCW. Each board must
establish and maintain records of its proceedings and determinations. While in
the possession of the board, all such records must be made available for
inspection and copies must be provided to the public on request under the
provisions of chapter 42.17 RCW.
(2)
Upon the conclusion of its business involving a water right transfer
application, a board must promptly send the original copies of all records
relating to that application to the department for recordkeeping. A board may
keep a copy of the original documents. After the records are transferred to
the department, the responsibility for making the records available under
chapter 42.17 RCW is transferred to the department.
NEW
SECTION. Sec. 19. A
new section is added to chapter 90.80 RCW to read as follows:
For
purposes of carrying out the official business of a board, a quorum consists of
the physical presence of two of the three members of a three-member board or
three of the five members of a five-member board. A board may operate with one
or two vacant positions as long as it meets the quorum requirement.
Sec.
20. RCW
90.80.140 and 1997 c 441 s 18 are each amended to read as follows:
Nothing
in this chapter affects transfers that may be otherwise approved under chapter
90.03 or 90.44 RCW.
Sec.
21. RCW
90.80.150 and 1997 c 441 s 19 are each amended to read as follows:
The
department shall report biennially by December 31st of each even-numbered year
to the appropriate committees of the legislature on the boards formed or sought
to be formed under the authority of this chapter, the transfer applications
reviewed and other activities conducted by the boards, and the funding of such
boards. Conservancy boards must provide information regarding their
activities to the department to assist the department in preparing the report.
NEW
SECTION. Sec. 22. It is
the intent of the legislature to help preserve the agricultural economy of the
state by allowing changes of family farm water permits from agricultural
irrigation to other agricultural purposes. Within the urbanizing areas of the
state, the legislature recognizes the need to allow water from family farms to
be converted to other purposes as the use of the land changes consistent with
adopted land use plans. The legislature also intends to allow farmers to
benefit from water conservation projects and from temporary leases of their
family farm water permits. Water conservation and water leases will also allow
farmers to contribute to instream flows and other purposes. However, outside
of urbanizing areas, the legislature intends to preserve farmlands by ensuring
that the quantity of water needed to grow the crops historically grown remains
with the farm. In addition, to help retain family farms within the state, the
legislature intends to allow family farms of a large enough size to be economically
viable under modern agricultural market conditions.
NEW
SECTION. Sec. 23. A
new section is added to chapter 90.66 RCW to read as follows:
(1)
Transfers of water rights established as family farm permits under this chapter
may be approved as authorized under this section and under RCW 90.03.380,
90.03.390, or 90.44.100 or chapter 90.80 RCW as appropriate.
(2)
A family farm permit may be transferred:
(a)
For use for agricultural irrigation purposes as limited by RCW 90.66.060 (1)
and (2);
(b)
To any purpose of use that is a beneficial use of water if the transfer is made
exclusively under a lease agreement, except that transfers for the use of water
for agricultural irrigation purposes shall be limited as provided by RCW
90.66.060 (1) and (2);
(c)
To any purpose of use that is a beneficial use of water if the water right is
for the use of water at a location that is, at the time the transfer is
approved, within the boundaries of an urban growth area designated under
chapter 36.70A RCW or, in counties not planning under chapter 36.70A RCW,
within a city or town or within areas designated for urban growth in
comprehensive plans prepared under chapter 36.70 RCW, except that transfers for
the use of water for agricultural irrigation purposes shall be limited as
provided by RCW 90.66.060 (1) and (2).
(3)
If a portion of the water governed by a water right established under the
authority of a family farm permit is made surplus to the beneficial uses
exercised under the right through the implementation of practices or
technologies, including but not limited to conveyance practices or
technologies, that are more water-use efficient than those under which the
right was perfected, the right to use the surplus water may be transferred to
any purpose of use that is a beneficial use of water. Nothing in this
subsection authorizes: A transfer of the portion of a water right that is
necessary for the production of crops historically grown under the right; or a
transfer of a water right or a portion of a water right that has not been
perfected through beneficial use before the transfer. Water right transfers
approved under this subsection must be consistent with the provisions of RCW
90.03.380(1).
(4)
Before a change in purpose of a family farm water permit to municipal supply
purpose or domestic purpose may be authorized, the public water system that is
receiving the family farm water permit must be meeting the water conservation
requirements of its current water system plan approved by the department of
health or its small water system management program.
(5)
The place of use for a water right transferred under the authority of this
section shall remain within: The water resource inventory area containing the
place of use for the water right before the transfer; or the urban growth area
or contiguous urban growth areas of the place of use for the water right before
the transfer if the urban growth area or contiguous urban growth areas cross
boundaries of water resource inventory areas.
(6)
The authority granted by this section to transfer or alter the purpose of use
of a water right established under the authority of a family farm permit shall
not be construed as limiting in any manner the authority granted by RCW
90.03.380, 90.03.390, or 90.44.100 to alter other elements of such a water
right.
Sec.
24. RCW
90.66.040 and 1979 c 3 s 4 are each amended to read as follows:
For
the purposes of this chapter, the following definitions shall be applicable:
(1)
"Family farm" means a geographic area including not more than ((two))
six thousand acres of irrigated agricultural lands, whether contiguous
or noncontiguous, the controlling interest in which is held by a person having
a controlling interest in no more than ((two)) six thousand acres
of irrigated agricultural lands in the state of Washington which are irrigated
under rights acquired after December 8, 1977.
(2)
"Person" means any individual, corporation, partnership, limited
partnership, organization, or other entity whatsoever, whether public or
private. The term "person" shall include as one person all corporate
or partnership entities with a common ownership of more than one-half of the
assets of each of any number of such entities.
(3)
"Controlling interest" means a property interest that can be
transferred to another person, the percentage interest so transferred being
sufficient to effect a change in control of the landlord's rights and
benefits. Ownership of property held in trust shall not be deemed a
controlling interest where no part of the trust has been established through
expenditure or assignment of assets of the beneficiary of the trust and where
the rights of the family farm permit which is a part of the trust cannot be
transferred to another by the beneficiary of the trust under terms of the
trust. Each trust of a separate donor origin shall be treated as a separate
entity and the administration of property under trust shall not represent a
controlling interest on the part of the trust officer.
(4)
"Department" means the department of ecology of the state of
Washington.
(5)
"Application", "permit" and "public waters" shall
have the meanings attributed to these terms in chapters 90.03 and 90.44 RCW.
(6)
"Public water entity" means any public or governmental entity with
authority to administer and operate a system to supply water for irrigation of
agricultural lands.
(7)
"Transfer" means a transfer, change, or amendment to part or all of a
water right authorized under RCW 90.03.380, 90.03.390, or 90.44.100 or chapter
90.80 RCW.
(8)
"Withdraw" means to withdraw ground water or to divert surface water.
Sec.
25. RCW
90.66.060 and 1979 c 3 s 6 are each amended to read as follows:
(1)
Except as provided in subsections (2) and (3) of this section, the right
to withdraw water for use for the irrigation of agricultural lands under
authority of a family farm permit shall have no time limit ((but)) and
shall be conditioned upon the land being irrigated complying with the
definition of a family farm as defined at the time the permit is issued((:
PROVIDED, HOWEVER, That)).
(2)
If the acquisition by any person of land and water rights by gift, devise,
bequest, or by way of bona fide satisfaction of a debt, would otherwise cause
land being irrigated pursuant to a family farm permit to lose its status as a
family farm, such acquisition shall be deemed to have no effect upon the status
of family farm water permits pertaining to land held or acquired by the person
acquiring such land and water rights if all lands held or acquired are again in
compliance with the definition of a family farm within five years from the date
of such acquisition.
(((2)))
(3) For family farm permits under this chapter, if the department
determines that water is being withdrawn ((under a family farm permit))
for use on land not in conformity with the definition of a family farm, the
department shall notify the holder of such family farm permit by personal
service of such fact and the permit shall be suspended two years from the date
of receipt of notice unless the person having a controlling interest in said
land satisfies the department that such land is again in conformity with the
definition of a family farm. The department may, upon a showing of good cause
and reasonable effort to attain compliance on the part of the person having the
controlling interest in such land, extend the two year period prior to
suspension. If conformity is not achieved prior to five years from the date of
notice the rights of withdrawal shall be canceled.
NEW
SECTION. Sec. 26. A
new section is added to chapter 82.16 RCW to read as follows:
(1)
The legislature intends to provide an incentive for water distribution
businesses to help reduce their customers' use of water through measures such
as: Water conservation and outreach programs, distributing shower flow
restrictors, toilet tank water displacement devices, and leak detection dye
tablets; providing water-efficient fixtures at no cost, giving a rebate for
customer-purchased fixtures, or arranging for suppliers to provide fixtures at
a reduced price; providing plants for low-water demand landscaping, moisture sensors,
flow timers, low-volume sprinklers, and drip irrigation systems; and using
conservation pricing and billings that show percentage increase/decrease in
water use over the same period from the previous year.
(2)
In computing tax under this chapter, there shall be deducted from the gross
income seventy-five percent of those amounts expended to improve consumers'
efficiency of water use or to otherwise reduce the use of water by the consumer
when the expenditures are implementing elements of the conservation plan within
a state approved water system plan or a small water system management program.
Total deductions taken under this subsection and the resulting tax savings
shall be reported to the department of revenue at the time the tax is due.
(3)
This chapter does not apply to seventy-five percent of the amounts received for
water services supplied by an entity that holds a permit under RCW 90.46.030
when the water supplied is reclaimed water as defined in RCW 90.46.010. Total
deductions taken under this subsection and the resulting tax savings shall be
reported to the department of revenue at the time the tax is due.
(4)(a)
There is created in the state general fund the state water rights trust
account. Moneys in the account may be spent only after appropriation.
Expenditures from the account may be used by the department of ecology, in
consultation with the department of fish and wildlife, only to purchase or
lease water rights to augment instream flows in streams supporting fish stocks
that are listed as threatened or endangered under federal law or listed as
depressed or threatened by reason of inadequate stream flows under state law.
(b)
The legislature intends that an amount equal to one-third of the total tax
savings resulting from this section in each state fiscal year shall be
appropriated from the general fund‑-state to the state water rights trust
account. The department of revenue shall calculate the total amount of tax
savings reported by water suppliers under this section and shall report this
amount to the office of financial management and the appropriate committees of
the legislature by October 1st of each calendar year.
(5)
This section expires June 30, 2003.
Sec.
27. RCW
90.14.140 and 1998 c 258 s 1 are each 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;
(c)
Nonvoluntary service in the armed forces of the United States;
(d)
The operation of legal proceedings;
(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.
(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;
(e)
If such waters are not subject to appropriation under the applicable provisions
of RCW 90.40.030; ((or))
(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; or
(g)
If such right is a trust water right under chapter 90.38 or 90.42 RCW.
(3)
In adding provisions to this section by this act, 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.
28. RCW
90.38.020 and 1989 c 429 s 3 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 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 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.
29. RCW
90.38.040 and 1994 c 264 s 90 are each amended to read as follows:
(1)
All trust water rights acquired by the department shall be placed in the Yakima
river basin trust water rights program to be managed by the department. The
department shall issue a water right certificate in the name of the state of
Washington for each trust water right it acquires.
(2)
Trust water rights shall retain the same priority date as the water right from
which they originated. Trust water rights may be modified as to purpose or
place of use or point of diversion, including modification from a diversionary
use to a nondiversionary instream use.
(3)
Trust water rights may be held by the department for instream flows ((and/or)),
irrigation use, or other beneficial use. Trust water rights may be acquired
on a temporary or permanent basis. To the extent practicable and subject to
legislative appropriation, trust water rights acquired in an area with an
approved watershed plan developed under chapter 90.82 RCW shall be consistent
with that plan if the plan calls for such acquisition.
(4)
A schedule of the amount of net water saved as a result of water conservation
projects carried out in accordance with this chapter, shall be developed
annually to reflect the predicted hydrologic and water supply conditions, as
well as anticipated water demands, for the upcoming irrigation season. This
schedule shall serve as the basis for the distribution and management of trust
water rights each year.
(5)(a)
No exercise of a trust water right may be authorized unless the department
first determines that no existing water rights, junior or senior in priority,
will be impaired as to their exercise or injured in any manner whatever by such
authorization.
(b)
Before any trust water right is exercised, the department shall publish notice
thereof in a newspaper of general circulation published in the county or
counties in which the storage, diversion, and use are to be made, and in such
other newspapers as the department determines are necessary, once a week for
two consecutive weeks. At the same time the department may also send notice
thereof containing pertinent information to the director of fish and wildlife.
(c)
Subsections (4) and (5)(b) of this section do not apply to a trust water right
resulting from a donation for instream flows described in RCW 90.38.020(1)(b)
or from the lease of a water right under RCW 90.38.020(6) if the period of the
lease does not exceed five years. However, the department shall provide the
notice described in (b) of this subsection the first time the trust water right
resulting from the donation is exercised.
(6)
RCW 90.03.380 and 90.14.140 through 90.14.910 shall have no applicability to
trust water rights held by the department under this chapter or exercised under
this section.
Sec.
30. RCW
90.42.040 and 1993 c 98 s 3 are each amended to read as follows:
(1)
All trust water rights acquired by the state shall be placed in the state trust
water rights program to be managed by the department. Trust water rights
acquired by the state shall be held or authorized for use by the department for
instream flows, irrigation, municipal, or other beneficial uses consistent with
applicable regional plans for pilot planning areas, or to resolve critical
water supply problems. To the extent practicable and subject to legislative
appropriation, trust water rights acquired in an area with an approved
watershed plan developed under chapter 90.82 RCW shall be consistent with that
plan if the plan calls for such acquisition.
(2)
The department shall issue a water right certificate in the name of the state
of Washington for each permanent trust water right conveyed to the state
indicating the reach or reaches of the stream, the quantity, and the use or
uses to which it may be applied. A superseding certificate shall be issued
that specifies the amount of water the water right holder would continue to be
entitled to as a result of the water conservation project. The superseding
certificate shall retain the same priority date as the original right. For
nonpermanent conveyances, the department shall issue certificates or such other
instruments as are necessary to reflect the changes in purpose or place of use
or point of diversion or withdrawal. ((Water rights for which such
nonpermanent conveyances are arranged shall not be subject to relinquishment
for nonuse.))
(3)
A trust water right retains the same priority date as the water right from
which it originated, but as between them the trust right shall be deemed to be
inferior in priority unless otherwise specified by an agreement between the
state and the party holding the original right.
(4)
Exercise of a trust water right may be authorized only if the department first
determines that neither water rights existing at the time the trust water right
is established, nor the public interest will be impaired. If impairment
becomes apparent during the time a trust water right is being exercised, the department
shall cease or modify the use of the trust water right to eliminate the
impairment.
(5)
Before any trust water right is created or modified, the department shall, at a
minimum, require that a notice be published in a newspaper of general circulation
published in the county or counties in which the storage, diversion, and use
are to be made, and in other newspapers as the department determines is
necessary, once a week for two consecutive weeks. At the same time the
department shall send a notice containing pertinent information to all
appropriate state agencies, potentially affected local governments and
federally recognized tribal governments, and other interested parties.
(6)
RCW 90.14.140 through 90.14.230 have no applicability to trust water rights
held by the department under this chapter or exercised under this section.
(7)
RCW 90.03.380 has no applicability to trust water rights acquired by the state
through the funding of water conservation projects.
(8)
Subsections (4) and (5) of this section do not apply to a trust water right
resulting from a donation for instream flows described in RCW 90.42.080(1)(b)
or to a trust water right leased under RCW 90.42.080(8) if the period of the
lease does not exceed five years. However, the department shall provide the
notice described in subsection (5) of this section the first time the trust
water right resulting from the donation is exercised.
Sec.
31. RCW
90.42.080 and 1993 c 98 s 4 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 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.
(((5)))
(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 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.
NEW
SECTION. Sec. 32. (1)
By December 31, 2004, the department of ecology must report to the appropriate
legislative committees the pertinent experience acquired in implementing the
various components of this act that are under its jurisdiction.
(2)
Beginning December 31, 2001, and ending on December 31, 2004, the department of
ecology shall report to the legislature by January 1st of each year on the
results of processing applications under RCW 90.03.380(5) and processing
applications through water conservancy boards under chapter 90.80 RCW. In the
report due on December 31, 2004, the department of ecology shall provide an
evaluation and make recommendations regarding modification of any of the
provisions of RCW 90.03.380(5).
(3)
By October 1, 2001, the office of financial management must complete an
assessment of watershed planning, including evaluation of the performance of
both watershed planning units and state agencies involved in watershed
planning. The office's assessment must address the progress of planning units
toward completion of watershed plans and the use of funds provided by the state
of Washington to planning units and state agencies for developing those plans.
The assessment must include an assessment of the progress of planning units and
the department of ecology in setting instream flows. The office must report
the results of the assessment to the appropriate committees of the legislature,
and the governor.
(4)
Beginning December 31, 2001, and ending on December 31, 2004, the office of
financial management shall review and report to the legislature by January 1st
of each year on whether the department of ecology has adequate funding for
fulfilling the department's responsibilities for processing applications
through water conservancy boards under chapter 90.80 RCW.
(5)
The office of financial management, in consultation with the departments of revenue,
health, and ecology, must evaluate the long-term revenue impacts and the costs
and benefits of the deductions and exclusions authorized by section 26 of this
act. The office of financial management must also evaluate the costs and
benefits and revenue impacts of other potential water conservation tax
incentives, including but not limited to those that may involve the sales, use,
property, utility, and business and occupations taxes. The office of financial
management must report its findings regarding tax incentives by December 31,
2001, to the legislature's standing committees with jurisdiction over water
resources and the legislative fiscal committees.
(6)
The office of financial management, in consultation with the departments of
health and ecology, must evaluate the level of water savings occurring from
water suppliers' use of the tax incentive provisions in section 26 of this act
and must report its findings to the legislature by December 31, 2002.
NEW
SECTION. Sec. 33. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW
SECTION. Sec. 34. 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.
