BILL REQ. #: H-0074.5
| State of Washington | 58th Legislature | 2003 Regular Session |
Read first time 01/29/2003. Referred to Committee on Agriculture & Natural Resources.
AN ACT Relating to water resources; amending RCW 90.03.380, 90.03.370, 90.14.130, 90.14.160, 90.14.170, 90.14.180, 90.03.015, 90.03.460, 90.44.050, 90.03.330, 90.44.100, 90.03.383, 90.54.020, 90.38.020, and 90.42.080; reenacting and amending RCW 90.14.140 and 43.84.092; adding a new section to chapter 90.14 RCW; adding new sections to chapter 90.03 RCW; adding new sections to chapter 43.155 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 90.03.380 and 2001 c 237 s 5 are each amended to read
as follows:
(1) The right to the use of water which has been applied to a
beneficial use in the state shall be and remain appurtenant to the land
or place upon which the same is used: PROVIDED, HOWEVER, That the
right may be transferred to another or to others and become appurtenant
to any other land or place of use without loss of priority of right
theretofore established if such change can be made without detriment or
injury to existing rights. The point of diversion of water for
beneficial use or the purpose of use may be changed, if such change can
be made without detriment or injury to existing rights. A change in
the place of use, point of diversion, and/or purpose of use of a water
right to enable irrigation of additional acreage or the addition of new
uses may be permitted if such change results in no increase in the
annual consumptive quantity of water used under the water right. For
purposes of this section, "annual consumptive quantity" means the
estimated or actual annual amount of water diverted or withdrawn
pursuant to the water right, reduced by the estimated annual amount of
return flows, ((averaged over the two years)) during the year of
greatest use within the most recent ((five-year)) fifteen-year period
of continuous beneficial use of the water right. Such an annual
consumptive quantity represents only the consumptive use portion of the
amount of water that may be spread to provide water for both existing
and new or expanded uses; it does not define either the extent of the
right or the total amount of water that may be transferred or changed
to accomplish the spreading nor does it apply to any changes,
transfers, or amendments that may be required to accommodate crop
rotation. 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 right to use water for any beneficial use within the
general category of an agricultural use includes the right to use the
water, without applying to the department or any other governmental
entity for approval, for any other beneficial use within the general
category of an agricultural use. The general category of an
agricultural use of water includes, but is not limited to, the
beneficial use of water for stock watering, agricultural irrigation,
processing agricultural commodities into agricultural products, and
other agricultural uses.
(5) 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))) (6)(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))) (6)(c) does not
affect any other existing authority to process applications.
(d) Nothing in this subsection (((5))) (6) is intended to stop the
processing of applications for new water rights.
(((6))) (7)(a) No applicant for a change, transfer, or amendment of
a surface or ground 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))) (b) The department's review of an application for change,
transfer, or an amendment of a surface or ground water right shall not
include a consideration or investigation of potential relinquishment of
the water right or a portion of the right through prior nonuse nor
shall the department's receipt or review or other consideration of such
an application or its action on such an application be cause for the
department's initiation of relinquishment proceedings under chapter
90.14 RCW for prior nonuse of the water right that is the subject of
the application.
(8) 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. 2 RCW 90.03.370 and 2002 c 329 s 10 are each amended to read
as follows:
(1)(a) All applications for reservoir permits are subject to the
provisions of RCW 90.03.250 through 90.03.320. But the party or
parties proposing to apply to a beneficial use the water stored in any
such reservoir shall also file an application for a permit, to be known
as the secondary permit, which shall be in compliance with the
provisions of RCW 90.03.250 through 90.03.320. Such secondary
application shall refer to such reservoir as its source of water supply
and shall show documentary evidence that an agreement has been entered
into with the owners of the reservoir for a permanent and sufficient
interest in said reservoir to impound enough water for the purposes set
forth in said application. When the beneficial use has been completed
and perfected under the secondary permit, the department shall take the
proof of the water users under such permit and the final certificate of
appropriation shall refer to both the ditch and works described in the
secondary permit and the reservoir described in the primary permit.
The department may accept for processing a single application form
covering both a proposed reservoir and a proposed secondary permit or
permits for use of water from that reservoir.
(b) The department shall expedite processing applications for the
following types of storage proposals:
(i) Development of storage facilities that will not require a new
water right for diversion or withdrawal of the water to be stored;
(ii) Adding or changing one or more purposes of use of stored
water;
(iii) Adding to the storage capacity of an existing storage
facility; and
(iv) Applications for secondary permits to secure use from existing
storage facilities.
(c) A secondary permit for the beneficial use of water shall not be
required for use of water stored in a reservoir where the water right
for the source of the stored water authorizes the beneficial use.
(d) The following types of storage facilities do not require a
reservoir or secondary permit from the department for the storage and
use of stored water:
(i) Rain barrels, cisterns, and other similar facilities for
capturing runoff from roofs, paved areas, and other hard surfaces on a
single residential, commercial, or industrial property or public
facility when the total amount of storage does not exceed ten thousand
gallons and the water stored is intended to be put to beneficial use;
(ii) Facilities to recapture and reuse return flow from irrigation
operations when serving a single farm operation if the acreage
irrigated is not increased beyond the acreage allowed to be irrigated
under the water right that applies to the property;
(iii) Offstream ponds filled from a separate source not exceeding
ten acre feet in capacity;
(iv) Excavated ponds not filled from a separate source, but rather
from interception of the water table;
(v) Storm water management storage facilities if no beneficial use
is made of the captured water; and
(vi) Excavated municipal water reservoirs, water towers, and other
similar facilities that are integral to a water supply system's
distribution system.
(2)(a) For the purposes of this section, "reservoir" includes, in
addition to any surface reservoir, any naturally occurring underground
geological formation where water is collected and stored for subsequent
use as part of an underground artificial storage and recovery project.
To qualify for issuance of a reservoir permit an underground geological
formation must meet standards for review and mitigation of adverse
impacts identified, for the following issues:
(i) Aquifer vulnerability and hydraulic continuity;
(ii) Potential impairment of existing water rights;
(iii) Geotechnical impacts and aquifer boundaries and
characteristics;
(iv) Chemical compatibility of surface waters and ground water;
(v) Recharge and recovery treatment requirements;
(vi) System operation;
(vii) Water rights and ownership of water stored for recovery; and
(viii) Environmental impacts.
(b) Standards for review and standards for mitigation of adverse
impacts for an underground artificial storage and recovery project
shall be established by the department by rule. Notwithstanding the
provisions of RCW 90.03.250 through 90.03.320, analysis of each
underground artificial storage and recovery project and each
underground geological formation for which an applicant seeks the
status of a reservoir shall be through applicant-initiated studies
reviewed by the department.
(3) For the purposes of this section, "underground artificial
storage and recovery project" means any project in which it is intended
to artificially store water in the ground through injection, surface
spreading and infiltration, or other department-approved method, and to
make subsequent use of the stored water. However, (a) this subsection
does not apply to irrigation return flow, or to operational and seepage
losses that occur during the irrigation of land, or to water that is
artificially stored due to the construction, operation, or maintenance
of an irrigation district project, or to projects involving water
reclaimed in accordance with chapter 90.46 RCW; and (b) RCW 90.44.130
applies to those instances of claimed artificial recharge occurring due
to the construction, operation, or maintenance of an irrigation
district project or operational and seepage losses that occur during
the irrigation of land, as well as other forms of claimed artificial
recharge already existing at the time a ground water subarea is
established.
(4) Nothing in chapter 98, Laws of 2000 changes the requirements of
existing law governing issuance of permits to appropriate or withdraw
the waters of the state.
(5) The department shall report to the legislature by December 31,
2001, on the standards for review and standards for mitigation
developed under subsection (3) of this section and on the status of any
applications that have been filed with the department for underground
artificial storage and recovery projects by that date.
(6) Where needed to ensure that existing storage capacity is
effectively and efficiently used to meet multiple purposes, the
department may authorize reservoirs to be filled more than once per
year or more than once per season of use.
Sec. 3 RCW 90.14.140 and 2001 c 240 s 1, 2001 c 237 s 27, and
2001 c 69 s 5 are each reenacted and amended to read as follows:
(1) For the purposes of RCW 90.14.130 through 90.14.180, the
following constitute "sufficient cause" ((shall be defined as)) for 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) The destruction of works, diversions, or other facilities
essential to use of the water by a cause not within the control of the
owner of the appropriation, and good faith efforts to repair or replace
the works, diversions, or facilities have been and are being made;
(c) Nonuse occurring during a period of time within which the water
was included in a pending application for a transfer, change, or
amendment of the water right filed with the department under chapter
90.03 or 90.44 RCW;
(d) Active service in the armed forces of the United States during
military crisis;
(((c))) (e) Nonvoluntary service in the armed forces of the United
States;
(((d))) (f) The operation of legal proceedings;
(((e))) (g) 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))) (h) Federal laws imposing land or water use restrictions
either directly or through the voluntary enrollment of a landowner in
a federal program implementing those laws, or acreage limitations, or
production quotas;
(((g) Temporarily reduced water need for irrigation use where such
reduction is due to varying weather conditions, including but not
limited to precipitation and temperature, that warranted the reduction
in water use, so long as the water user's diversion and delivery
facilities are maintained in good operating condition consistent with
beneficial use of the full amount of the water right;)) (i) Nonuse occurring during a period of time within which the
exercise of all or part of the water right was not necessary due to
climatic conditions, if the water right holder had the facility capable
of handling the full allowed rate and duty, and was otherwise ready,
willing, and able to use the entire amount of water allowed under the
water right;
(h)
(j) Temporarily reduced diversions or withdrawals of irrigation
water directly resulting from the provisions of a contract or similar
agreement in which a supplier of electricity buys back electricity from
the water right holder and the electricity is needed for the diversion
or withdrawal or for the use of the water diverted or withdrawn for
irrigation purposes;
(((i))) (k) Water conservation measures, including but not limited
to such measures implemented under the Yakima river basin water
enhancement project((, so long as)). With regard to water conservation
measures implemented under the Yakima river basin water enhancement
project, the conserved water ((is)) must be reallocated in accordance
with the provisions of P.L. 103-434;
(((j))) (l) Reliance by an irrigation water user on the transitory
presence of return flows in lieu of diversion or withdrawal of water
from the primary source of supply, if such return flows are measured or
reliably estimated using a scientific methodology generally accepted as
reliable within the scientific community; ((or)) (m) The reduced use of irrigation water resulting from crop
rotation. For purposes of this subsection, crop rotation means the
((
(k)temporary)) short-term or long-term change in the type of crops grown
((resulting from the exercise of generally recognized sound farming
practices)). Unused water resulting from crop rotation will not be
relinquished if the remaining portion of the water continues to be
beneficially used; or
(n) Foreclosure, bankruptcy, or economic hardship.
(2) Notwithstanding any other provisions of RCW 90.14.130 through
90.14.180, there shall be no relinquishment of any water right or
portion of a 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;
(f) If such right or portion of the right is leased to another
person for use on land other than the land to which the right is
appurtenant as long as the lessee makes beneficial use of the right in
accordance with this chapter and a transfer or change of the right has
been approved by the department in accordance with RCW 90.03.380,
90.03.383, 90.03.390, or 90.44.100;
(g) If such a right or portion of the right is authorized for a
purpose that is satisfied by the use of agricultural industrial process
water as authorized under RCW 90.46.150; ((or))
(h) If such right is a trust water right under chapter 90.38 or
90.42 RCW; or
(i) If the period of full or partial nonuse of such right occurred
more than fifteen years before the date upon which relinquishment
proceedings are commenced under RCW 90.14.130 or the date upon which
adjudication proceedings are commenced under RCW 90.03.105 through
90.03.245 or 90.44.220.
(3) In adding provisions to this section by chapter 237, Laws of
2001, the legislature does not intend to imply legislative approval or
disapproval of any existing administrative policy regarding, or any
existing administrative or judicial interpretation of, the provisions
of this section not expressly added or revised.
NEW SECTION. Sec. 4 (1) State statutes requiring the
relinquishment of water rights for a failure to use the rights were
first enacted in 1967. Under the new system of relinquishment
established that year, loss of a water right through nonuse is largely
unencumbered by the difficulties of determining the intent of a water
right holder. It can be determined administratively.
However, in providing this procedure in 1967, the legislature did
not have to concern itself with the state of water use records during
the entire history of the use of water rights. The statutes were
forward-looking; they dealt with contemporary events unfolding in the
near future. This administratively expeditious means of requiring the
forfeiture of property rights was balanced by the contemporary nature
of the type of information that could be obtained regarding the use of
the rights. It was supported by the ability of water right holders to
know readily whether or not their rights had been recently used and to
know readily which records of their activities could be used to counter
a claim that their water rights or portions of their water rights had
not been exercised as required. The same cannot be said thirty-six
years later.
In the intervening years, records have been lost or simply not
kept. Water rights have passed from one person to another, many times
repeatedly. Direct knowledge of the type of information that could
counter some partial evidence provided by another has dissipated. Some
judicial decisions may have left the impression that recordkeeping
regarding individual water use within a federal reclamation project is
not relevant to the application of the relinquishment laws: Water use
within such a project would be treated collectively, as a whole.
The purpose of RCW 90.14.130(3) and 90.14.140(2)(i) is to ensure
that the state's relinquishment laws for the nonuse of water rights are
applied to relatively contemporary events.
(2) Sections 5(3) and 3(2)(i) of this act apply retroactively,
except with regard to determinations of relinquishment made by the
pollution control hearings board or a court before the effective date
of those provisions.
Sec. 5 RCW 90.14.130 and 1987 c 109 s 13 are each amended to read
as follows:
(1) When it appears to the department of ecology that a person
entitled to the use of water has not beneficially used his or her water
right or some portion thereof within the preceding fifteen years, and
it appears that said right has or may have reverted to the state
because of such nonuse, as provided by RCW 90.14.160, 90.14.170, or
90.14.180, the department of ecology shall notify such person by order:
PROVIDED, That where a company, association, district, or the United
States has filed a blanket claim under the provisions of ((RCW
90.14.060)) this chapter for the total benefits of those served by it,
the notice shall be served on such company, association, district, or
the United States and not upon any of its individual water users who
may not have used the water or some portion thereof which they were
entitled to use. The order shall contain: (((1))) (a) A description
of the water right, including the approximate location of the point of
diversion, the general description of the lands or places where such
waters were used, the water source, the amount involved, the purpose of
use, and the apparent authority upon which the right is based; (((2)))
(b) a statement that unless sufficient cause be shown on appeal the
water right will be declared relinquished; and (((3))) (c) a statement
that such order may be appealed to the pollution control hearings
board. Any person aggrieved by such an order may appeal it to the
pollution control hearings board pursuant to RCW 43.21B.310. The order
shall be served by registered or certified mail to the last known
address of the person and be posted at the point of division or
withdrawal. The order by itself shall not alter the recipient's right
to use water, if any.
(2) Relinquishment under this chapter shall not occur except in
accordance with the procedure set forth in this section or in a
proceeding to determine rights to water under RCW 90.03.105 through
90.03.245 or 90.44.220.
(3) Notwithstanding any other provisions of this chapter, there
shall be no relinquishment of any water right or any portion of a water
right for full or partial nonuse of such right that occurred more than
fifteen years before the date upon which relinquishment proceedings are
commenced under this section or the date upon which adjudication
proceedings are commenced under RCW 90.03.105 through 90.03.245 or
90.44.220.
Sec. 6 RCW 90.14.160 and 1981 c 291 s 1 are each amended to read
as follows:
Any person entitled to divert or withdraw waters of the state
through any appropriation authorized by enactments of the legislature
prior to enactment of chapter 117, Laws of 1917, or by custom, or by
general adjudication, who abandons the same, or who voluntarily fails,
without sufficient cause, to beneficially use all or any part of said
right to divert or withdraw for any period of ((five)) fifteen
successive years after July 1, 1967, shall relinquish such right or
portion thereof in accordance with the procedure set forth in RCW
90.14.130 or as part of adjudication proceedings commenced under RCW
90.03.105 through 90.03.245 or 90.44.220, and said right or portion
thereof shall revert to the state, and the waters affected by said
right shall become available for appropriation in accordance with RCW
90.03.250.
Sec. 7 RCW 90.14.170 and 1967 c 233 s 17 are each amended to read
as follows:
Any person entitled to divert or withdraw waters of the state by
virtue of his or her ownership of land abutting a stream, lake, or
watercourse, who abandons the same, or who voluntarily fails, without
sufficient cause, to beneficially use all or any part of said right to
withdraw or divert said water for any period of ((five)) fifteen
successive years after July 1, 1967, shall relinquish such right or
portion thereof in accordance with the procedure set forth in RCW
90.14.130 or as part of adjudication proceedings commenced under RCW
90.03.105 through 90.03.245 or 90.44.220, and such right or portion
thereof shall revert to the state, and the waters affected by said
right shall become available for appropriation in accordance with the
provisions of RCW 90.03.250.
Sec. 8 RCW 90.14.180 and 1987 c 109 s 101 are each amended to
read as follows:
Any person hereafter entitled to divert or withdraw waters of the
state through an appropriation authorized under RCW 90.03.330,
90.44.080, or 90.44.090 who abandons the same, or who voluntarily
fails, without sufficient cause, to beneficially use all or any part of
said right to withdraw for any period of ((five)) fifteen successive
years shall relinquish such right or portion thereof in accordance with
the procedure set forth in RCW 90.14.130 or as part of adjudication
proceedings commenced under RCW 90.03.105 through 90.03.245 or
90.44.220, and such right or portion thereof shall revert to the state,
and the waters affected by said right shall become available for
appropriation in accordance with RCW 90.03.250. All certificates
hereafter issued by the department of ecology pursuant to RCW 90.03.330
shall expressly incorporate this section by reference.
NEW SECTION. Sec. 9 A new section is added to chapter 90.14 RCW
to read as follows:
For the purpose of determining relinquishment, the following shall
be used to determine the amount of water that has been beneficially
used under a water right on an annual basis: The amount beneficially
used is the amount of water used within the limits of the right during
the year in which the greatest volume of water was used under the right
during the most current fifteen-year period.
NEW SECTION. Sec. 10 A new section is added to chapter 90.03 RCW
to read as follows:
(1) The place of use for the surface or ground water right of a
public water system as defined by RCW 70.119A.020(4) is whichever of
the following that provides the largest service area for the system:
(a) The place of use listed on the system's water right certificate
or in the statements of claim for the system's water rights filed in
the state's water rights claims registry established under RCW
90.14.111;
(b) The place of use identified in the water system plan most
recently approved by the department of health for the system under RCW
43.20.050 or as part of a coordinated water system plan under chapter
70.116 RCW; or
(c) The place of use identified in the water system plan most
recently submitted by the system to the department of health for
approval under RCW 43.20.050 or as part of a coordinated water system
plan under chapter 70.116 RCW.
(2) Subsection (1)(b) and (c) of this section apply only to public
water systems for which water system plans have been submitted for
approval under RCW 43.20.050 or as part of a coordinated water system
plan under chapter 70.116 RCW.
(3) For a public water system as defined in RCW 70.119A.020(4), the
maximum number of service connections or maximum population to be
served specified on a water right application, permit, certificate, or
claim, or in related supporting documents, shall not be an attribute
limiting exercise of the water right.
Sec. 11 RCW 90.03.015 and 1987 c 109 s 65 are each amended to
read as follows:
((As used in this chapter:)) The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Department" means the department of ecology((;)).
(2) "Director" means the director of ecology((; and)).
(3) "Municipal water supplier" means a purveyor, as defined in RCW
70.116.030(4), that: (a) Owns or operates a public water system that
is entitled or obligated to serve existing and additional customers and
uses within one or more approved water service areas to the extent such
customers and uses are allowed under an applicable land use plan; and
(b) has an approved water system plan under chapter 43.20 or 70.116
RCW.
(4) "Municipal water supply purposes" means any beneficial use for
which water is or is anticipated to be provided by a municipal water
supplier, and includes water held to meet future demands or to meet
state requirements for back-up supplies such as provisions in the
wellhead protection program.
(5) "Person" means any firm, association, water users' association,
corporation, irrigation district, or municipal corporation, as well as
an individual.
Sec. 12 RCW 90.03.460 and 1917 c 117 s 43 are each amended to
read as follows:
(1) Nothing in this chapter contained shall operate to effect an
impairment of any inchoate right to divert and use water while the
application of the water in question to a beneficial use is being
prosecuted with reasonable diligence, having due regard to the
circumstances surrounding the enterprise, including the magnitude of
the project for putting the water to a beneficial use and the market
for the resulting water right for irrigation or power or other
beneficial use, in the locality in question.
(2) A municipal water supplier prosecutes its surface or ground
water right with reasonable diligence when the right has been or is
identified to meet existing or reasonably anticipated future needs in
an approved water system plan pursuant to chapter 43.20 RCW or an
approved coordinated water system plan pursuant to chapter 70.116 RCW.
This subsection does not limit or exclude other methods or means of
prosecuting a water right with reasonable diligence, including, without
limitation, installed system capacity.
(3) Municipal water suppliers have a minimum of fifty years from
the latest approval of a plan identified in subsection (2) of this
section to put to use their water rights identified for reasonably
anticipated future use. Municipal water suppliers may have additional
time based on the particular facts and circumstances, including,
without limitation, the size and nature of the water diversion or
conveyance project, projected useful life of facilities, size and
nature of service areas, growth projections, system interconnections,
water conservation, and financing requirements.
Sec. 13 RCW 90.44.050 and 1987 c 109 s 108 are each amended to
read as follows:
After June 6, 1945, no withdrawal of public ground waters of the
state shall be begun, nor shall any well or other works for such
withdrawal be constructed, unless an application to appropriate such
waters has been made to the department and a permit has been granted by
it ((as herein)) provided((: EXCEPT, HOWEVER, That)) in this section.
The following uses are exempt from this section, to the extent that the
uses are regularly used beneficially, and are entitled to a right equal
to that established by a permit issued under this chapter:
(1) Any withdrawal of public ground waters for stock-watering
purposes((, or for));
(2) Any withdrawal of public ground waters in an amount not
exceeding five thousand gallons a day for:
(a) The watering of a lawn; or
(b) The watering of a noncommercial garden not exceeding one-half
acre in area((,)); or ((for))
(c) Single or group domestic uses ((in an amount not exceeding five
thousand gallons a day,)); or ((for))
(d) An industrial purpose ((in an amount not exceeding five
thousand gallons a day, is and shall be exempt from the provisions of
this section, but, to the extent that it is regularly used
beneficially, shall be entitled to a right equal to that established by
a permit issued under the provisions of this chapter: PROVIDED,
HOWEVER, That)). However, the department from time to time may require
the person or agency making any such small withdrawal to furnish
information as to the means for and the quantity of that withdrawal((:
PROVIDED, FURTHER, That)), but the department does not have authority
to require the metering or measuring of the withdrawals authorized in
this section. At the option of the party making withdrawals of ground
waters of the state not exceeding five thousand gallons per day,
applications under this section or declarations under RCW 90.44.090 may
be filed and permits and certificates obtained in the same manner and
under the same requirements as is in this chapter provided in the case
of withdrawals in excess of five thousand gallons a day.
Sec. 14 RCW 90.03.330 and 1987 c 109 s 89 are each amended to
read as follows:
(1) Upon a showing satisfactory to the department that any
appropriation has been perfected in accordance with the provisions of
this chapter, it shall be the duty of the department to issue to the
applicant a certificate stating such facts in a form to be prescribed
by him, and such certificate shall thereupon be recorded with the
department. Any original water right certificate issued, as provided
by this chapter, shall be recorded with the department and thereafter,
at the expense of the party receiving the same, be by the department
transmitted to the county auditor of the county or counties where the
distributing system or any part thereof is located, and be recorded in
the office of such county auditor, and thereafter be transmitted to the
owner thereof.
(2) A certificate issued by the department under this chapter may
not be revoked or diminished without specific statutory direction to do
so unless:
(a) The water right represented by the certificate has been
relinquished under chapter 90.14 RCW or as part of a general
adjudication proceeding commenced under RCW 90.03.105 through 90.03.245
or 90.44.220 and the revocation or diminishment represents that
relinquishment; or
(b) The certificate was issued with ministerial errors or was
obtained through the misrepresentation of the completion of the project
or the quantity appropriated. The department may adjust a certificate
under this subsection (2)(b) if ministerial errors are discovered, but
only to the extent necessary to correct the ministerial errors; it may
diminish the right represented by a certificate if the certificate was
obtained through a misrepresentation on the part of the applicant or
permit holder but only to the extent of the misrepresentation; and it
may revoke a certificate obtained through a misrepresentation on the
part of the applicant or permit holder if the misrepresentation was so
critical to the decision to issue the certificate that it is clear that
no certificate for any aspect of the right would have been issued under
the laws and policies applicable at the time the decision to issue the
certificate was made. However, the authority provided by this
subsection (2) does not include revoking, diminishing, or adjusting a
certificate based on any change in policy regarding the issuance of
such certificates occurring since the certificate was issued.
Sec. 15 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)) purpose 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)) purpose 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))
increase the amount of water the holder of the water right is entitled
to withdraw under 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) A certificate issued by the department under this chapter may
not be revoked or diminished without specific statutory direction to do
so unless:
(a) The water right represented by the certificate has been
relinquished under chapter 90.14 RCW or as part of a general
adjudication proceeding commenced under RCW 90.03.105 through 90.03.245
or 90.44.220 and the revocation or diminishment represents that
relinquishment; or
(b) The certificate was issued with ministerial errors or was
obtained through the misrepresentation of the completion of the project
or the quantity appropriated. The department may adjust a certificate
under this subsection (4)(b) if ministerial errors are discovered, but
only to the extent necessary to correct the ministerial errors; it may
diminish the right represented by a certificate if the certificate was
obtained through a misrepresentation on the part of the applicant or
permit holder but only to the extent of the misrepresentation; and it
may revoke a certificate obtained through a misrepresentation on the
part of the applicant or permit holder if the misrepresentation was so
critical to the decision to issue the certificate that it is clear that
no certificate for any aspect of the right would have been issued under
the laws and policies applicable at the time the decision to issue the
certificate was made. However, the authority provided by this
subsection (4) does not include revoking, diminishing, or adjusting a
certificate based on any change in policy regarding the issuance of
such certificates occurring since the certificate was issued.
(5) 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.
(6) The right to use water for any beneficial use within the
general category of an agricultural use includes the right to use the
water, without applying to the department or any other governmental
entity for approval, for any other beneficial use within the general
category of an agricultural use. The general category of an
agricultural use of water includes, but is not limited to, the
beneficial use of water for stock watering, agricultural irrigation,
processing agricultural commodities into agricultural products, and
other agricultural uses.
NEW SECTION. Sec. 16 A new section is added to chapter 90.03 RCW
to read as follows:
Surface and ground water rights held by the same person may be
conjunctively used without a transfer, change, or amendment of the
rights to maintain flows in streams during portions of the year of
generally reduced flows as long as the total quantity of water used
under the surface and ground water rights on an annual basis is within
the total quantity of water authorized under the rights and other water
rights existing at the time the conjunctive use is initiated are not
impaired.
Sec. 17 RCW 90.03.383 and 1991 c 350 s 1 are each amended to read
as follows:
(1) The legislature recognizes the value of interties for improving
the reliability of public water systems, enhancing their management,
and more efficiently utilizing the increasingly limited resource.
Given the continued growth in the most populous areas of the state, the
increased complexity of public water supply management, and the trend
toward regional planning and regional solutions to resource issues,
interconnections of public water systems through interties provide a
valuable tool to ensure reliable public water supplies for the citizens
of the state. Public water systems have been encouraged in the past to
utilize interties to achieve public health and resource management
objectives. The legislature finds that it is in the public interest to
recognize interties existing and in use as of January 1, 1991, and to
have associated water rights modified by the department of ecology to
reflect current use of water through those interties, pursuant to
subsection (3) of this section. The legislature further finds it in
the public interest to develop a coordinated process to review
proposals for interties commencing use after January 1, 1991.
(2) For the purposes of this section, the following definitions
shall apply:
(a) "Interties" are interconnections between public water systems
permitting exchange, acquisition, or delivery of water between those
systems for other than emergency supply purposes, where such exchange,
acquisition, or delivery is within established instantaneous and annual
withdrawal rates specified in the systems' existing water right permits
or certificates, or contained in claims filed pursuant to chapter 90.14
RCW, and which results in better management of public water supply
consistent with existing rights and obligations. Interties include
interconnections between public water systems permitting exchange,
acquisition, or delivery of water to serve as primary or secondary
sources of supply((, but do not include development of new sources of
supply to meet future demand)).
(b) "Service area" is the area designated in a water system plan or
a coordinated water system plan pursuant to chapter 43.20 or 70.116 RCW
respectively. When a public water system does not have a designated
service area subject to the approval process of those chapters, the
service area shall be the designated place of use contained in the
water right permit or certificate, or contained in the claim filed
pursuant to chapter 90.14 RCW.
(3) Public water systems with interties existing and in use as of
January 1, 1991, or that have received written approval from the
department of health prior to that date, shall file written notice of
those interties with the department of health and the department of
ecology. The notice may be incorporated into the public water system's
five-year update of its water system plan, but shall be filed no later
than June 30, 1996. The notice shall identify the location of the
intertie; the dates of its first use; the purpose, capacity, and
current use; the intertie agreement of the parties and the service
areas assigned; and other information reasonably necessary to modify
the water right permit. Notwithstanding the provisions of RCW
90.03.380 and 90.44.100, for public water systems with interties
existing and in use as of January 1, 1991, the department of ecology,
upon receipt of notice meeting the requirements of this subsection,
shall, as soon as practicable, modify the place of use descriptions in
the water right permits, certificates, or claims to reflect the actual
use through such interties, provided that the place of use is within
service area designations established in a water system plan approved
pursuant to chapter 43.20 RCW, or a coordinated water system plan
approved pursuant to chapter 70.116 RCW, and further provided that the
water used is within the instantaneous and annual withdrawal rates
specified in the water right permit and that no outstanding complaints
of impairment to existing water rights have been filed with the
department of ecology prior to September 1, 1991. Where such
complaints of impairment have been received, the department of ecology
shall make all reasonable efforts to resolve them in a timely manner
through agreement of the parties or through available administrative
remedies.
(4) Notwithstanding the provisions of RCW 90.03.380 and 90.44.100,
exchange or delivery of water through interties commencing use after
January 1, 1991, shall be permitted when the intertie improves overall
system reliability, enhances the manageability of the systems, provides
opportunities for conjunctive use, or delays or avoids the need to
develop new water sources, and otherwise meets the requirements of this
section, provided that each public water system's water use shall not
exceed the instantaneous or annual withdrawal rate specified in its
water right authorization, shall not adversely affect existing water
rights, and shall not be inconsistent with state-approved plans such as
water system plans or other plans which include specific proposals for
construction of interties. Interties commencing use after January 1,
1991, shall not be inconsistent with regional water resource plans
developed pursuant to chapter 90.54 RCW.
(5) For public water systems subject to the approval process of
chapter 43.20 RCW or chapter 70.116 RCW, proposals for interties
commencing use after January 1, 1991, shall be incorporated into water
system plans pursuant to chapter 43.20 RCW or coordinated water system
plans pursuant to chapter 70.116 RCW and submitted to the department of
health and the department of ecology for review and approval as
provided for in subsections (5) through (9) of this section. The plan
shall state how the proposed intertie will improve overall system
reliability, enhance the manageability of the systems, provide
opportunities for conjunctive use, or delay or avoid the need to
develop new water sources.
(6) The department of health shall be responsible for review and
approval of proposals for new interties. In its review the department
of health shall determine whether the intertie satisfies the criteria
of subsection (4) of this section, with the exception of water rights
considerations, which are the responsibility of the department of
ecology, and shall determine whether the intertie is necessary to
address emergent public health or safety concerns associated with
public water supply.
(7) If the intertie is determined by the department of health to be
necessary to address emergent public health or safety concerns
associated with public water supply, the public water system shall
amend its water system plan as required and shall file an application
with the department of ecology to change its existing water right to
reflect the proposed use of the water as described in the approved
water system plan. The department of ecology shall process the
application for change pursuant to RCW 90.03.380 or 90.44.100 as
appropriate, except that, notwithstanding the requirements of those
sections regarding notice and protest periods, applicants shall be
required to publish notice one time, and the comment period shall be
fifteen days from the date of publication of the notice. Within sixty
days of receiving the application, the department of ecology shall
issue findings and advise the department of health if existing water
rights are determined to be adversely affected. If no determination is
provided by the department of ecology within the sixty-day period, the
department of health shall proceed as if existing rights are not
adversely affected by the proposed intertie. The department of ecology
may obtain an extension of the sixty-day period by submitting written
notice to the department of health and to the applicant indicating a
definite date by which its determination will be made. No additional
extensions shall be granted, and in no event shall the total review
period for the department of ecology exceed one hundred eighty days.
(8) If the department of health determines the proposed intertie
appears to meet the requirements of subsection (4) of this section but
is not necessary to address emergent public health or safety concerns
associated with public water supply, the department of health shall
instruct the applicant to submit to the department of ecology an
application for change to the underlying water right or claim as
necessary to reflect the new place of use. The department of ecology
shall consider the applications pursuant to the provisions of RCW
90.03.380 and 90.44.100 as appropriate. If in its review of proposed
interties and associated water rights the department of ecology
determines that additional information is required to act on the
application, the department may request applicants to provide
information necessary for its decision, consistent with agency rules
and written guidelines. Parties disagreeing with the decision of the
department of ecology on the application for change in place of use may
appeal the decision to the pollution control hearings board.
(9) The department of health may approve plans containing intertie
proposals prior to the department of ecology's decision on the water
right application for change in place of use. However, notwithstanding
such approval, construction work on the intertie shall not begin until
the department of ecology issues the appropriate water right document
to the applicant consistent with the approved plan.
Sec. 18 RCW 90.54.020 and 1997 c 442 s 201 are each amended to
read as follows:
Utilization and management of the waters of the state shall be
guided by the following general declaration of fundamentals:
(1) Uses of water for domestic, stock watering, industrial,
commercial, agricultural, irrigation, hydroelectric power production,
mining, fish and wildlife maintenance and enhancement, recreational,
and thermal power production purposes, and preservation of
environmental and aesthetic values, and all other uses compatible with
the enjoyment of the public waters of the state, are declared to be
beneficial.
(2) Allocation of waters among potential uses and users shall be
based generally on the securing of the maximum net benefits for the
people of the state. Maximum net benefits shall constitute total
benefits less costs including opportunities lost.
(3) The quality of the natural environment shall be protected and,
where possible, enhanced as follows:
(a) Perennial rivers and streams of the state shall be retained
with base flows necessary to provide for preservation of wildlife,
fish, scenic, aesthetic and other environmental values, and
navigational values. Lakes and ponds shall be retained substantially
in their natural condition. Withdrawals of water which would conflict
therewith shall be authorized only in those situations where it is
clear that overriding considerations of the public interest will be
served.
(b) Waters of the state shall be of high quality. Regardless of
the quality of the waters of the state, all wastes and other materials
and substances proposed for entry into said waters shall be provided
with all known, available, and reasonable methods of treatment prior to
entry. Notwithstanding that standards of quality established for the
waters of the state would not be violated, wastes and other materials
and substances shall not be allowed to enter such waters which will
reduce the existing quality thereof, except in those situations where
it is clear that overriding considerations of the public interest will
be served. Technology-based effluent limitations or standards for
discharges for municipal water treatment plants located on the
Chehalis, Columbia, Cowlitz, Lewis, or Skagit river shall be adjusted
to reflect credit for substances removed from the plant intake water
if:
(i) The municipality demonstrates that the intake water is drawn
from the same body of water into which the discharge is made; and
(ii) The municipality demonstrates that no violation of receiving
water quality standards or appreciable environmental degradation will
result.
(4) The development of multipurpose water storage facilities shall
be a high priority for programs of water allocation, planning,
management, and efficiency. The department, other state agencies, and
local governments((, and planning units formed under section 107 or 108
of this act)) shall evaluate the potential for the development of new
storage projects and the benefits and effects of storage in reducing
damage to stream banks and property, increasing the use of land,
providing water for municipal, industrial, agricultural, power
generation, and other beneficial uses, and improving stream flow
regimes for fisheries and other instream uses.
(5) Adequate and safe supplies of water shall be preserved and
protected in potable condition to satisfy human domestic needs.
(6) Multiple-purpose impoundment structures are to be preferred
over single-purpose structures. Due regard shall be given to means and
methods for protection of fishery resources in the planning for and
construction of water impoundment structures and other artificial
obstructions.
(7) Federal, state, and local governments, individuals,
corporations, groups and other entities shall be encouraged to carry
out practices of conservation as they relate to the use of the waters
of the state. In addition to traditional development approaches,
improved water use efficiency and conservation shall be emphasized in
the management of the state's water resources and in some cases will be
a potential new source of water with which to meet future needs
throughout the state.
(8) Development of water supply systems, whether publicly or
privately owned, which provide water to the public generally in
regional areas within the state shall be encouraged. Development of
water supply systems for multiple domestic use which will not serve the
public generally shall be discouraged where water supplies are
available from water systems serving the public.
(9) Full recognition shall be given in the administration of water
allocation and use programs to the natural interrelationships of
surface and ground waters.
(10) Adjudicating water rights and claims under RCW 90.03.105
through 90.03.245 and 90.44.220 can be one of the most effective means
of resolving uncertainty regarding the rights of water users. Although
resolving uncertainty regarding water rights in entire regions may be
required from time to time, initiating and conducting such
adjudications in smaller geographic areas to settle rights against
smaller bodies of water is to be given high priority in managing water
resources.
(11) Expressions of the public interest will be sought at all
stages of water planning and allocation discussions.
(((11))) (12) Water management programs, including but not limited
to, water quality, flood control, drainage, erosion control and storm
runoff are deemed to be in the public interest.
Sec. 19 RCW 90.38.020 and 2002 c 329 s 7 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 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) 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, 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 90.38.902, 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.
(8) The procedures identified in subsection (1)(b) of this section
for donations and identified in subsection (6) of this section for
leases shall also apply to donations or leases of existing water rights
where:
(a) Existing water rights related to agriculture are donated or
leased to preserve the opportunity for future agricultural use and to
enhance instream flows temporarily; or
(b) Existing water rights acquired for the purpose of providing
water supply to industrial lands as designated in a land use plan
adopted under chapter 36.70A RCW are donated or leased to preserve the
opportunity for future industrial use and to enhance instream flows
temporarily.
Sec. 20 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) of this section and the other applicable
requirements of this chapter and the terms prescribed are relevant and
material to protecting any interest in the water right retained by the
donor. Once accepted, such rights are trust water rights within the
conditions prescribed by the donor.
(2) The department may enter into leases, contracts, or such other
arrangements with other persons or entities as appropriate, to ensure
that trust water rights acquired in accordance with this chapter may be
exercised to the fullest possible extent.
(3) Trust water rights may be acquired by the state on a temporary
or permanent basis.
(4) A water right donated under subsection (1)(b) of this section
shall not exceed the extent to which the water right was exercised
during the five years before the donation nor may the total of any
portion of the water right remaining with the donor plus the donated
portion of the water right exceed the extent to which the water right
was exercised during the five years before the donation. A water right
holder who believes his or her water right has been impaired by a trust
water right donated under subsection (1)(b) of this section may request
that the department review the impairment claim. If the department
determines that exercising the trust water right resulting from the
donation or exercising a portion of that trust water right donated
under subsection (1)(b) of this section is impairing existing water
rights in violation of RCW 90.42.070, the trust water right shall be
altered by the department to eliminate the impairment. Any decision of
the department to alter or not to alter a trust water right donated
under subsection (1)(b) of this section is appealable to the pollution
control hearings board under RCW 43.21B.230. A donated water right's
status as a trust water right under this subsection is not evidence of
the validity or quantity of the water right.
(5) The provisions of RCW 90.03.380 and 90.03.390 do not apply to
donations for instream flows described in subsection (1)(b) of this
section, but do apply to other transfers of water rights under this
section.
(6) No funds may be expended for the purchase of water rights by
the state pursuant to this section unless specifically appropriated for
this purpose by the legislature.
(7) Any water right conveyed to the trust water right system as a
gift that is expressly conditioned to limit its use to instream
purposes shall be managed by the department for public purposes to
ensure that it qualifies as a gift that is deductible for federal
income taxation purposes for the person or entity conveying the water
right.
(8) If the department acquires a trust water right by lease, 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. 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.
(10) The procedures identified in subsection (1)(b) of this section
for donations and identified in subsection (8) of this section for
leases also apply to donations or leases of existing water rights
where:
(a) Existing water rights related to agriculture are donated or
leased to preserve the opportunity for future agricultural use and to
enhance instream flows temporarily; or
(b) Existing water rights acquired for the purpose of providing
water supply to industrial lands as designated in a land use plan
adopted under chapter 36.70A RCW are donated or leased to preserve the
opportunity for future industrial use and to enhance instream flows
temporarily.
NEW SECTION. Sec. 21 A new section is added to chapter 43.155
RCW to read as follows:
The legislature finds that the state has a significant need to
provide a reliable water supply for people, farms, and fish, and that
this can be accomplished through such activities as the construction of
multiple purpose water storage facilities, and the leasing of water.
NEW SECTION. Sec. 22 A new section is added to chapter 43.155
RCW to read as follows:
The water for agriculture, salmon, and humans account is hereby
created in the state treasury. The moneys in this account shall only
be used for activities that develop water storage projects for multiple
purposes, lease water, ensure safe drinking water, increase municipal
and agricultural water conservation, promote water reuse, and to
implement projects developed through locally based watershed planning.
All interest earnings on moneys deposited into the account, including
loan repayments, shall remain in the account and may be used for
eligible purposes. Moneys in the account may be spent only after
appropriation.
NEW SECTION. Sec. 23 A new section is added to chapter 43.155
RCW to read as follows:
(1) The proceeds from the sale of bonds authorized by this
subchapter shall be deposited into the water for agriculture, salmon,
and humans account created in section 22 of this act unless otherwise
specified below. These funds shall be appropriated by the legislature
as follows:
(a) Fifty percent of the funding shall be used for water storage
and conveyance projects for multiple instream and out-of-stream
purposes. For this purpose, funding for a water storage facility that
is within the distribution works of a public water system and within an
incorporated area or within an area designated as an urban growth area
under chapter 36.70A RCW shall be considered funding for a drinking
water system and not funding that applies to the fifty percent
dedicated by this subsection (1)(a). The department shall establish
criteria for a grant and loan program for the construction, planning,
design, and studies necessary for water storage and conveyance
projects. The department shall contract with the public works board
created under RCW 43.155.030 to administer these grants and loans;
(b) Twenty-five percent of the funding shall be deposited into the
public works assistance account under chapter 43.155 RCW and shall be
used for safe drinking water and reclaimed water projects;
(c) Ten percent of the funding shall be used for agricultural water
conservation projects and instream flows;
(d) Seven and one-half percent of the funding shall be used to
lease water to meet instream flow levels needed by fish; and
(e) Seven and one-half percent of the funding shall be used for
implementing projects developed through the watershed planning process
authorized under chapter 90.82 RCW.
(2) The percentage of the local funding for a capital project that
is required under this section to receive state funding shall be the
same for all types and categories of capital projects.
(3) If an agricultural water conservation project is provided
funding under this section and in consideration thereof a portion of
the water available under a water right involved in the project is to
be transferred or otherwise dedicated to the state, the transfer or
dedication shall be in the form of a lease of water for a period that
is not more than the period during which the elements of the
conservation project are estimated to operate effectively and
efficiently. The quantity of water transferred or dedicated to the
state expressed as a percentage of the total water available under the
right before the transfer or dedication shall not exceed the percentage
of the total cost of the conservation project represented by the funds
provided by the state for the conservation project.
(4) The legislature may authorize expenditures from the water for
agriculture, salmon, and humans account to pay for the costs of
establishing and administering the water infrastructure programs
described in subsection (1) of this section. The amount of funding
dedicated to this purpose shall not exceed one percent of the total
amount of bonds sold in any calendar year. These funds may be used to
define technical and financial program requirements, such as grant and
loan criteria, to solicit, review, and award funds, and to monitor
performance, make payments, and conduct other administrative
activities.
NEW SECTION. Sec. 24 A new section is added to chapter 43.155
RCW to read as follows:
The legislature shall appropriate any moneys that are provided
under section 23 of this act for capital projects, including planning,
engineering, and other studies for such projects, to the public works
board created under RCW 43.155.030. Before November 1st of each year,
the board shall develop and submit to the governor and the legislature
a prioritized list of projects that are recommended for funding by the
legislature under this section. The board shall approve and disburse
grants and loans for such projects from appropriations made under this
section.
Sec. 25 RCW 43.84.092 and 2002 c 242 s 2, 2002 c 114 s 24 and
2002 c 56 s 402 are each reenacted and amended to read as follows:
(1) All earnings of investments of surplus balances in the state
treasury shall be deposited to the treasury income account, which
account is hereby established in the state treasury.
(2) The treasury income account shall be utilized to pay or receive
funds associated with federal programs as required by the federal cash
management improvement act of 1990. The treasury income account is
subject in all respects to chapter 43.88 RCW, but no appropriation is
required for refunds or allocations of interest earnings required by
the cash management improvement act. Refunds of interest to the
federal treasury required under the cash management improvement act
fall under RCW 43.88.180 and shall not require appropriation. The
office of financial management shall determine the amounts due to or
from the federal government pursuant to the cash management improvement
act. The office of financial management may direct transfers of funds
between accounts as deemed necessary to implement the provisions of the
cash management improvement act, and this subsection. Refunds or
allocations shall occur prior to the distributions of earnings set
forth in subsection (4) of this section.
(3) Except for the provisions of RCW 43.84.160, the treasury income
account may be utilized for the payment of purchased banking services
on behalf of treasury funds including, but not limited to, depository,
safekeeping, and disbursement functions for the state treasury and
affected state agencies. The treasury income account is subject in all
respects to chapter 43.88 RCW, but no appropriation is required for
payments to financial institutions. Payments shall occur prior to
distribution of earnings set forth in subsection (4) of this section.
(4) Monthly, the state treasurer shall distribute the earnings
credited to the treasury income account. The state treasurer shall
credit the general fund with all the earnings credited to the treasury
income account except:
(a) The following accounts and funds shall receive their
proportionate share of earnings based upon each account's and fund's
average daily balance for the period: The capitol building
construction account, the Cedar River channel construction and
operation account, the Central Washington University capital projects
account, the charitable, educational, penal and reformatory
institutions account, the common school construction fund, the county
criminal justice assistance account, the county sales and use tax
equalization account, the data processing building construction
account, the deferred compensation administrative account, the deferred
compensation principal account, the department of retirement systems
expense account, the drinking water assistance account, the drinking
water assistance administrative account, the drinking water assistance
repayment account, the Eastern Washington University capital projects
account, the education construction fund, the emergency reserve fund,
the federal forest revolving account, the health services account, the
public health services account, the health system capacity account, the
personal health services account, the state higher education
construction account, the higher education construction account, the
highway infrastructure account, the industrial insurance premium refund
account, the judges' retirement account, the judicial retirement
administrative account, the judicial retirement principal account, the
local leasehold excise tax account, the local real estate excise tax
account, the local sales and use tax account, the medical aid account,
the mobile home park relocation fund, the multimodal transportation
account, the municipal criminal justice assistance account, the
municipal sales and use tax equalization account, the natural resources
deposit account, the oyster reserve land account, the perpetual
surveillance and maintenance account, the public employees' retirement
system plan 1 account, the public employees' retirement system combined
plan 2 and plan 3 account, the public facilities construction loan
revolving account beginning July 1, 2004, the public health
supplemental account, the Puyallup tribal settlement account, the
regional transportation investment district account, the resource
management cost account, the site closure account, the special wildlife
account, the state employees' insurance account, the state employees'
insurance reserve account, the state investment board expense account,
the state investment board commingled trust fund accounts, the
supplemental pension account, the Tacoma Narrows toll bridge account,
the teachers' retirement system plan 1 account, the teachers'
retirement system combined plan 2 and plan 3 account, the tobacco
prevention and control account, the tobacco settlement account, the
transportation infrastructure account, the tuition recovery trust fund,
the University of Washington bond retirement fund, the University of
Washington building account, the volunteer fire fighters' and reserve
officers' relief and pension principal fund, the volunteer fire
fighters' and reserve officers' administrative fund, the Washington
fruit express account, the Washington judicial retirement system
account, the Washington law enforcement officers' and fire fighters'
system plan 1 retirement account, the Washington law enforcement
officers' and fire fighters' system plan 2 retirement account, the
Washington school employees' retirement system combined plan 2 and 3
account, the Washington state health insurance pool account, the
Washington state patrol retirement account, the Washington State
University building account, the Washington State University bond
retirement fund, the water for agriculture, salmon, and humans account,
the water pollution control revolving fund, and the Western Washington
University capital projects account. Earnings derived from investing
balances of the agricultural permanent fund, the normal school
permanent fund, the permanent common school fund, the scientific
permanent fund, and the state university permanent fund shall be
allocated to their respective beneficiary accounts. All earnings to be
distributed under this subsection (4)(a) shall first be reduced by the
allocation to the state treasurer's service fund pursuant to RCW
43.08.190.
(b) The following accounts and funds shall receive eighty percent
of their proportionate share of earnings based upon each account's or
fund's average daily balance for the period: The aeronautics account,
the aircraft search and rescue account, the county arterial
preservation account, the department of licensing services account, the
essential rail assistance account, the ferry bond retirement fund, the
grade crossing protective fund, the high capacity transportation
account, the highway bond retirement fund, the highway safety account,
the motor vehicle fund, the motorcycle safety education account, the
pilotage account, the public transportation systems account, the Puget
Sound capital construction account, the Puget Sound ferry operations
account, the recreational vehicle account, the rural arterial trust
account, the safety and education account, the special category C
account, the state patrol highway account, the transportation equipment
fund, the transportation fund, the transportation improvement account,
the transportation improvement board bond retirement account, and the
urban arterial trust account.
(5) In conformance with Article II, section 37 of the state
Constitution, no treasury accounts or funds shall be allocated earnings
without the specific affirmative directive of this section.
NEW SECTION. Sec. 26 Sections 21 through 24 of this act
constitute a new subchapter in chapter
NEW SECTION. Sec. 27 Sections 5 (1) and (2) and 6 through 8 of
this act apply retroactively, except with regard to determinations of
relinquishment made by the pollution control hearings board or a court
before the effective date of those sections of this act.