BILL REQ. #:  H-2020.1 

READ FIRST TIME 03/05/03.   

     AN ACT Relating to the trust water rights program; amending RCW 90.42.005, 90.42.010, 90.42.020, 90.42.030, 90.42.040, 90.42.070, 90.42.080, 90.54.045, 90.03.380, and 90.44.100; adding new sections to chapter 90.42 RCW; adding a new section to chapter 90.54 RCW; creating a new section; and repealing RCW 90.42.050.

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

Sec. 1   RCW 90.42.005 and 1991 c 347 s 1 are each amended to read as follows:
     (1) It is the policy of the state of Washington to recognize and preserve water rights in accordance with RCW 90.03.010.
     (2) The legislature finds that:
     (a) The state of Washington is faced with a shortage of water with which to meet existing and future needs, particularly during the summer and fall months and in dry years when the demand is greatest;
     (b) Consistent with RCW 90.54.180, conservation and water use efficiency programs, including storage, should be the preferred methods of addressing water uses because they can relieve current critical water situations, provide for presently unmet needs, and assist in meeting future water needs. Presently unmet needs or current needs includes the water required to increase the frequency of occurrence of base or minimum flow levels in streams of the state, the water necessary to satisfy existing water rights, or the water necessary to provide full supplies to existing water systems with current supply deficiencies; ((and))
     (c) The trust water rights program provides a mechanism to promote conservation and water use efficiency by allowing the establishment of trust water rights on either a temporary or permanent basis, which assists water rights holders in preserving existing water rights and the interests of the public in enhancing instream flows;
     (d) The trust water rights program should provide flexibility to water rights holders by including mechanisms to allow existing water rights holders to temporarily place their water rights into trust without an extensive examination of the extent and validity of that right while ensuring that the extent and validity of rights placed permanently in the trust water rights program have been examined and determined; and
     (e) The interests of the state will be served by developing programs and regional water resource plans, in cooperation with local governments, federally recognized tribal governments, appropriate federal agencies, private citizens, and the various water users and water interests in the state, that increase the overall ability to manage the state's waters in order to resolve conflicts and to better satisfy both present and future instream and out-of-stream needs for water.

Sec. 2   RCW 90.42.010 and 1998 c 245 s 173 are each amended to read as follows:
     (1) The legislature finds that the trust water rights program is an important tool to meet the state's current and future instream and out-of-stream needs for water. The legislature also finds that existing procedures for establishing trust water rights are unnecessarily complex and that the program is difficult to explain and administer. The legislature therefore intends to enhance the effectiveness of the trust water rights program by improving existing incentives, removing disincentives, and clarifying and consolidating procedures for establishing trust water rights.
     (2) The legislature ((finds that)) recognizes a need ((exists)) to ((develop and test)) provide a means to facilitate the voluntary transfer of water and water rights, including conserved water, to provide water for presently unmet needs and emerging needs. ((Further,)) The legislature also finds that water conservation activities have the potential of affecting the quantity of return flow waters to which existing water right holders have a right to and upon which they rely ((upon)). ((It is the intent of)) The legislature intends that persons holding rights to water, including return flows, not be adversely affected in the implementation of the provisions of this chapter.

Sec. 3   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 unless the context clearly requires otherwise.
     (1) "Department" means the department of ecology.
     (2) "Net water savings" means the amount of water that is determined to be conserved and usable within or from a specified ((stream reach or reaches)) water body in a water conservation project for ((other)) the purposes specified in this chapter 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)) funded.
     (3) "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) (("Pilot planning areas" means the geographic areas designated under RCW 90.54.045(2).
     (5))) "Water conservation project" means ((any)) a project ((or program)):
     (a) 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)); and
     (b) For which the state provides state or federal assistance.

Sec. 4   RCW 90.42.030 and 1993 c 98 s 2 are each amended to read as follows:
     (1) For the purposes ((of)) specified in this chapter, the state may enter into contracts to provide moneys to assist in the financing of water conservation projects. In consideration for the financial assistance provided, the state shall obtain public benefits ((defined in guidelines developed under RCW 90.42.050)) in the form of temporary or permanent water rights.
     (2) If the public benefits to be obtained require conveyance or modification of a water right, the recipient of funds shall convey to the state the recipient's interest in that part of the water right ((or claim)) constituting all or a portion of the resulting net water savings ((for deposit in the trust water rights program. The amount to be conveyed shall be finitely determined by the parties, in accordance with the guidelines developed under RCW 90.42.050, before the expenditure of state funds)) according to section 8 of this act. Conveyance may consist of complete transfer, lease contracts, or other legally binding agreements. When negotiating for the acquisition of conserved water or net water savings, or a portion thereof, the state may require evidence of a valid water right.
     (3) ((As part of the contract,)) If requested by the water right holder ((and)), the state shall specify ((the process to determine)) as part of the contract the amount of water the water right holder would continue to be entitled to once the water conservation project is in place.
     (4) The state shall cooperate fully with the United States in the implementation of this chapter. Trust water rights may be acquired through expenditure of funds provided by the United States and shall be treated in the same manner as trust water rights resulting from the expenditure of state funds.
     (5) If water is proposed to be acquired by or conveyed to the state as a trust water right by an irrigation district, evidence of the district's authority to represent the water right holders shall be submitted to and for the satisfaction of the department.
     (6) The state shall not contract with any person to acquire a water right served by an irrigation district without the approval of the board of directors of the irrigation district. Disapproval by a board shall be factually based on probable adverse effects on the ability of the district to deliver water to other members or on maintenance of the financial integrity of the district.

Sec. 5   RCW 90.42.040 and 2002 c 329 s 8 are each amended to read as follows:
     (1) The state may acquire for the trust water rights program all or portions of existing surface or ground water rights, including those represented by water rights certificates or water rights claims filed in the water rights claim registry created under RCW 90.14.111 and rights to storage and use of stored water from existing reservoir and secondary use rights. The state may acquire these rights by purchase, lease, gift, donation, financial participation in water conservation projects, or other appropriate means other than by condemnation. These rights may be acquired from any person or entity or from any combination of persons or entities. These rights may be acquired by the state on a temporary or permanent basis. Once acquired by the state, these rights are established as trust water rights.
     (2) The department may enter into leases, contracts, or other arrangements with other persons or entities as appropriate to ensure that trust water rights acquired and established according to this chapter may be exercised to the fullest extent possible.
     (3) All trust water rights ((acquired)) established by the state shall be placed in the state trust water rights program to be managed by the department. Trust water rights ((acquired)) established 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)) the uses specified in section 6 of this act. To the extent practicable and subject to legislative appropriation, trust water rights ((acquired in an area with an approved)) must be consistent with a watershed plan ((developed under)) adopted under chapter 90.82 RCW ((shall be consistent with that plan)) or a similar process 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.
     (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))) (4) RCW 90.03.380 ((has no applicability)) does not apply 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.
     (9) Where a portion of an existing water right that is acquired or donated to the trust water rights program will assist in achieving established instream flows, the department shall process the change or amendment of the existing right without conducting a review of the extent and validity of the portion of the water right that will remain with the water right holder.))

NEW SECTION.  Sec. 6   A new section is added to chapter 90.42 RCW to read as follows:
     (1) Trust water rights established in the trust water rights program according to this chapter must be held or authorized for use by the department. Subject to subsection (3) of this section, trust water rights may be used for any beneficial use specified in RCW 90.54.020(1) and may be established to:
     (a) Protect water rights secured for mitigation purposes;
     (b) Resolve critical water supply problems;
     (c) Maintain existing water rights in situations and during periods in which the extent to which the right is exercised may fluctuate; and
     (d) Preserve water rights for future needs.
     (2) The use of trust water rights shall be consistent with a watershed plan adopted according to chapter 90.82 RCW or a similar process.
     (3) Any trust water rights established according to this chapter that are intended to be used for any purpose other than assisting to achieve established instream flows or enhancing instream flows shall be transferred to a water bank created under chapter . . . (House Bill No. 1640), Laws of 2003, as enacted or as may be amended, as soon as a water bank is available for the area in which the trust water right is to be exercised.

NEW SECTION.  Sec. 7   A new section is added to chapter 90.42 RCW to read as follows:
     (1) A trust water right retains the same priority date as the water right from which it originated. The trust right shall be deemed to be inferior in priority to the water right from which it originated unless otherwise specified by an agreement between the state and the party holding the original right.
     (2) The priority date of an unperfected water right established as a trust water right according to section 8(6) of this act is the date of its establishment as a trust water right. If an unperfected water right is established as a temporary trust water right, it reverts to the original owner as an unperfected right with the priority date of the original right.

NEW SECTION.  Sec. 8   A new section is added to chapter 90.42 RCW to read as follows:
     (1) Except as provided in subsection (6) of this section, trust water rights may be established only to the extent the water right has been perfected through actual beneficial use. The quantity of water established as a trust water right and transferred to the trust water rights program according to this chapter shall be determined through the application of water system engineering or other appropriate, quantitative methods. The quantity of water shall not exceed the extent to which:
     (a) The water right has been perfected through actual beneficial use; and
     (b) Water use under the original right is reduced or foregone, resulting in a net benefit to the water body as a result of establishing the trust water right.
     (2) A reduction in water use may result from one or more of the following:
     (a) Reduced diversion or withdrawal of water under the original right as a result of a water conservation project;
     (b) A reduction in the number of acres irrigated under the right or a long-term change in the type of crop grown that will require less water;
     (c) A reduction in the period of use of the right, on a seasonal basis, during periods of low stream flows or according to conditions prescribed for the trust water right;
     (d) The elimination of water use under the original right;
     (e) A downstream change in point of diversion of a water right that results in increased flows in the reach of the stream affected by the change;
     (f) The temporary or permanent use of a different source of supply to meet all or a portion of the water needs under the original right; or
     (g) Other appropriate changes in activities under the original right as agreed between the water right holder and the department.
     (3) When a trust water right is established from a portion of an existing water right, the department shall quantify only the portion of the right to be acquired and established as a trust water right.
     (4) When the state provides funding for a water conservation project according to RCW 90.42.030, the recipient of funds conveys to the state the portion of the water right constituting all or a portion of the net water savings resulting from the project. This amount must be acquired and established as a trust water right. Before the expenditure of funds, the state and the water right holder shall agree on the procedures for determining net water savings to be acquired and established as a trust water right according to RCW 90.42.030 and this section.
     (5) For a water right to be acquired or established in the trust water rights program on a temporary basis, the department shall specify that the quantity for purposes of the trust water rights program is the full quantity of water diverted or withdrawn to exercise the right before such acquisition and establishment. The full quantity shall revert to the person or entity from whom it was obtained when the trust period expires.
     (6) All or a portion of an unperfected water right in good standing may be acquired and established as a trust water right. The requirements of subsection (1) of this section do not apply to an unperfected right acquired or established according to this subsection.

NEW SECTION.  Sec. 9   A new section is added to chapter 90.42 RCW to read as follows:
     (1) 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. The certificate shall indicate the water body that is the source of the water, the quantity of water involved, and the use or uses to which it may be applied. If the use of the right or a portion of the right is for instream use, the stream reach or reaches of that instream use also must be indicated. The certificate must specify the amount of water conveyed to the state.
     (2) The certificate retains the same priority date as the original right as provided in section 7 of this act.
     (3) For nonpermanent and partial 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.

NEW SECTION.  Sec. 10   A new section is added to chapter 90.42 RCW to read as follows:
     (1) Before any trust water right donated or leased under RCW 90.42.080 is first exercised, the department shall publish a notice in a newspaper of general circulation published in the county or counties in which the water right from which the donation or lease was derived is located and in other newspapers as the department determines is necessary. The notice must be published once a week for two consecutive weeks.
     (2) Before acquiring, establishing, or modifying any trust water right acquired by any method other than donation or lease, the department shall publish a notice 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. The notice must be published once a week for two consecutive weeks.
     (3) At the same time the department publishes notice according to subsection (1) or (2) of this section, 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.
     (4) This section does not apply to a trust water right resulting from a donation for instream flows under RCW 90.42.080 or from a lease under RCW 90.42.080 if the period of the lease does not exceed five years. However, the department shall provide the notice described in this section the first time the trust water right resulting from the donation for instream flows is exercised.
     (5) This section does not apply to a trust water right established during a formally declared drought.

NEW SECTION.  Sec. 11   A new section is added to chapter 90.42 RCW to read as follows:
     The water relinquishment provisions of RCW 90.14.140 through 90.14.230 do not apply to trust water rights established or exercised by the department as of the date the trust water right is established.

NEW SECTION.  Sec. 12   A new section is added to chapter 90.42 RCW to read as follows:
     (1) After notice according to section 10 of this act and consideration of comments received, the department shall issue a final decision regarding the establishment of a trust water right. The department shall provide copies of its final decision to the affected parties and to persons or entities specified in section 10(3) of this act.
     (2) The department's final decision regarding the establishment of a trust water right may be appealed to the pollution control hearings board according to chapter 43.21B RCW.

NEW SECTION.  Sec. 13   A new section is added to chapter 90.42 RCW to read as follows:
     The provisions of RCW 90.03.380 regarding an annual consumptive quantity of water do not apply to any portion of a trust water right acquired to assist in achieving established instream flows.

NEW SECTION.  Sec. 14   A new section is added to chapter 90.42 RCW to read as follows:
     (1) Requirements for transfers, changes, or amendments for water rights according to RCW 90.03.380, 90.03.390, and 90.44.100 do not apply to:
     (a) Trust water rights acquired by the state through water conservation projects authorized by RCW 90.42.030;
     (b) Donations made under RCW 90.42.080; or
     (c) Leases of water rights for not more than five years according to RCW 90.42.080.
     (2) In processing a transfer, change, or amendment for any other water right established in the trust water rights program, if a portion of an existing water right that is acquired for and established in the trust water rights program will assist in achieving established instream flows, the department shall process the transfer, change, or amendment of the existing right without conducting a review of the extent and validity of the portion of the water right that will remain with the water right holder.

NEW SECTION.  Sec. 15   A new section is added to chapter 90.54 RCW to read as follows:
     The department shall cooperate fully with the United States in implementing this chapter. Trust water rights may be established through expenditure of funds provided by the United States and must be treated in the same manner as trust water rights established as a result of the expenditure of state funds.

Sec. 16   RCW 90.42.070 and 1991 c 347 s 11 are each amended to read as follows:
     (1) Nothing in this chapter authorizes the ((involuntary)) impairment of, or operates to impair, any existing water rights.
     (2) A trust water right may be established 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.
     (3) A water right holder who believes his or her water right has been impaired by a trust water right donated or leased under RCW 90.42.080 may request that the department review his or her impairment claim. If the department determines that exercising the trust water right resulting from the donation or lease or exercising a portion of that trust water right is impairing existing water rights in violation of this section, the trust water right must be altered by the department to eliminate the impairment.
     (4) Any decision of the department made according to subsection (2) or (3) of this section may be appealed to the pollution control hearings board according to chapter 43.21B RCW.

Sec. 17   RCW 90.42.080 and 2002 c 329 s 9 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 the holder of a right to water from 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 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))) (2) 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.))
     (3) A donated water right's status as a trust water right under this ((subsection is not)) section does not provide independent 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))) (4) If the department acquires a trust water right by lease, 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 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.))
     (5) 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))) (6) 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. 18   A new section is added to chapter 90.42 RCW to read as follows:
     Any water right conveyed to the trust water right program as a gift that is expressly conditioned to limit its use to instream purposes must 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.

Sec. 19   RCW 90.54.045 and 1991 c 347 s 4 are each amended to read as follows:
     (1) In the development and implementation of the comprehensive state water resources program required in RCW 90.54.040(1), the process described therein shall involve participation of appropriate state agencies, Indian tribes, local governments, and interested parties((, and shall be applied on a regional basis pursuant to subsection (2) of this section)).
     (2) ((Prior to July 1, 1991, the department, with advice from appropriate state agencies, Indian tribes, local government, and interested parties, shall identify regions and establish regional boundaries for water resource planning and shall designate two regions in which the process shall be initiated on a pilot basis. One region shall encompass an area within the Puget Sound basin in which critical water resource issues exist. A concurrent pilot process may encompass a region east of the Cascade mountains.
     (3) The department shall report to the chairs of the appropriate legislative committees prior to July 1st each year summarizing the progress of the pilot process in the two regions. The pilot process in each region shall be completed and shall produce a regional water plan by December 31, 1993.
     (4))) Appropriate state agencies, Indian tribes, local governments, and interested parties ((in regions not selected for the pilot program)) are strongly encouraged to commence water resource planning within their regions.

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)) previously 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. Except as provided in section 14 of this act, 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) The requirements of this section ((shall)) do 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)) described in section 14 of this act.
     (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 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. 21   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; (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.
     (5) The requirements of this section do not apply to trust water rights described in section 14 of this act.

NEW SECTION.  Sec. 22   A new section is added to chapter 90.42 RCW to read as follows:
     No state funds may be expended to establish trust water rights unless specifically appropriated for this purpose by the legislature. Prior to expending state or federal funds for a trust water right, the department shall exercise appropriate due diligence, as practiced by other water right purchasers, to ensure the validity of the water right or the portion of the water right for which the funds will be expended.

NEW SECTION.  Sec. 23   Nothing in this act is intended to affect the acquisition, establishment, or validity of any trust water rights acquired on or before the effective date of this section.

NEW SECTION.  Sec. 24   RCW 90.42.050 (Guidelines governing trust water rights -- Submission of guidelines to joint select committee) and 1991 c 347 s 9 are each repealed.

NEW SECTION.  Sec. 25   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.