READ FIRST TIME 03/04/03.   

     AN ACT Relating to the construction of replacement or additional wells; and amending RCW 90.44.100.

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

Sec. 1   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 or withdraw water under the right from an additional existing well or wells 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) Except as provided in subsection (5) of this section, an amendment to withdraw water under the right from an additional existing well or wells, 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)) be located within the same water resource inventory area (WRIA), as defined in chapter 173-500 WAC, as the original well or wells or in an adjoining WRIA. If a watershed plan has been approved under chapter 90.82 RCW or a comprehensive watershed plan has been adopted under RCW 90.54.040(1) for the WRIA or the adjoining WRIA or for both WRIAs, moving the location of the well or wells through construction or addition must be consistent with the plan or plans. If a ground water management program has been adopted by the department under RCW 90.44.400 through 90.44.430 for the original or new location for the well or wells, moving the location of the well or wells through construction or addition must be consistent with the adopted program; (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 added or 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)) increase the annual or instantaneous quantity 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 addition or construction of a replacement or new or existing 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 or existing 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 added or 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 or existing additional well is added or 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)) increase the annual or instantaneous quantity conveyed by the original water use permit or certificate; (d) the addition or 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 larger of: (a) The area described as the point of withdrawal in the original public notice published for the application for the water right for the well; or (b) the area up to one-quarter mile radius from the current well or wells.
     (5)(a) A water right holder may add or construct a replacement or new or existing additional well or wells at a location outside the location of the original well or wells but not more than two miles from the current well or wells without obtaining approval from the department under the following conditions:
     (i) At least sixty days before adding or starting construction of the well or wells, the water right holder must provide written notice to the department of the intention to add or construct the replacement or additional well or wells and publish a legal notice prescribed by the department describing the location of the additional existing or proposed well or wells, the amounts of water to be withdrawn, and other details deemed necessary by the department. The notice must state that a person wishing to assert a claim of impairment of the person's water right may do so by filing the claim with the department and the deadline for doing so, which shall be within thirty days of the last date of publication of the notice. The notice must be published once a week for two consecutive weeks in a newspaper of general circulation in the area in which the well or wells would be located or added. The department must provide a copy of the notice to the tribal governments of all Indian tribes in the watershed or watersheds involved and to any planning unit conducting planning under chapter 90.82 RCW for the area and must post a copy of the notice on its internet web site. The department must file such a claim on behalf of the state if it believes any water rights held by the state would be impaired;
     (ii) No claims of impairment of a water right are filed by the holder of the water right with the department relating to the proposed replacement or additional well or wells within thirty days of the last date of publication of the legal notice; and
     (iii) The conditions of subsection (3)(a) through (d), (f), and (g) of this section are met.
     (b) If a claim of impairment of a water right is timely filed by the holder of the water right with the department, the department shall make a determination regarding the impairment claim and shall issue its determination in writing within ninety days of the date the claim was filed, stating either that it finds that there will be impairment (a "finding of impairment") or that it finds there will not be impairment (a "finding of no impairment"). The department's written determination or its failure to issue a determination within the ninety-day deadline may be appealed, by the claimant or by the water right holder who published notice under (a)(i) of this subsection, to the pollution control hearings board as provided in chapter 43.21B RCW.
     (c) Where an impairment claim has been filed, a replacement well may only be added or constructed under this subsection (5) after a final resolution of the impairment claim results in a finding of no impairment. Final resolution of an impairment claim occurs at the expiration of the appeal period following a final determination by the department, the pollution control hearings board, and any reviewing court.
     (d) The failure of the department or a person authorized to file a claim of impairment before the thirty-day deadline established in (a) of this subsection shall not be construed as precluding the department or the person from taking actions to require the discontinuance of or reduction in the withdrawal of water from the well or wells added or located and constructed under the authority of this subsection (5) if the state's or person's rights are impaired by the withdrawals.