BILL REQ. #:  S-0974.2 

Read first time 01/27/2005.   Referred to Committee on Water, Energy & Environment.

     AN ACT Relating to allocation of conserved water rights; adding new sections to chapter 90.03 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that conservation and efficient use of water benefits all water users by providing water to satisfy current and future needs in a cost-effective manner. The legislature further finds that while current water law principles call for efficiently using water to meet beneficial needs, many water right holders will not be inclined to make investments in conservation measures if all of the resulting water savings are returned to public water status for use by others or for other purposes.
     Therefore it is the intent of this act to strongly promote conservation by providing for a fair allocation of conserved water between the water right holder implementing conservation measures and the public by administering a portion of the conserved water in the trust water program.

NEW SECTION.  Sec. 2   A new section is added to chapter 90.03 RCW to read as follows:
     As used in sections 2 through 7 of this act:
     (1) "Conservation" means the reduction of the amount of water diverted or withdrawn to satisfy an existing beneficial use achieved either by improving the technology or method for diverting, withdrawing, transporting, applying, or recovering the water or by implementing other approved conservation measures.
     (2) "Conserved water" means the amount of water that results from conservation measures, measured as the difference between:
     (a) The smaller of the amount stated on the water right permit or certificate, or the maximum of water that can be diverted using the existing facilities; and
     (b) The amount of water needed after implementation of conservation measures to meet the beneficial use under the water right certificate.

NEW SECTION.  Sec. 3   A new section is added to chapter 90.03 RCW to read as follows:
     (1) Any water right holder may apply to the department for approval of an allocation of conserved water from a conservation measure that the holder intends to implement or that has been implemented within the five years prior to making the application.
     (2) The application shall include:
     (a) A description of the proposed measures or implemented measures;
     (b) A description of the existing diversion facilities and an estimate of the amount of water that can be diverted at the facilities, and for implemented measures, a description of the diversion facilities before the conservation measure was implemented and the amount of water that was diverted at the facilities before the conservation measure was implemented;
     (c) The amount of water needed or that will be needed to supply existing rights after implementation of the conservation measures;
     (d) The amount of conserved water expected to be conserved or that has been conserved by implementation of the conservation measures;
     (e) The proposed allocation and use of the conserved water if different from the allocation specified in section 4 of this act;
     (f) The intended use of any conserved water allocated to the applicant;
     (g) The applicant's choice of priority date for the conserved water; and
     (h) Any other information the department considers necessary to evaluate the effectiveness of the proposal.
     (3) If a person proposes conservation measures within the boundaries of an irrigation district, the person also must submit evidence that the board of directors of the district approves the conservation application.

NEW SECTION.  Sec. 4   A new section is added to chapter 90.03 RCW to read as follows:
     (1) Upon receipt of an application for allocation of conserved water:
     (a) Notice of the application shall be published as provided in RCW 90.03.280; and
     (b) The provisions of RCW 90.14.160 through 90.14.180 do not apply to the conserved water covered by the application.
     (2) The department shall allocate fifty percent of the conserved water to the applicant and the remaining fifty percent to the state to be managed as a trust water right under chapter 90.42 RCW, except that the allocation shall be adjusted if the criteria of section 7 of this act apply. The department may not allocate conserved water under the provisions of this section if the application is filed more than five years after the conservation measure was implemented.
     (3) The department shall notify the applicant and any other person requesting notice of the proposed action by the department on the application.
     (4) After the department completes the allocation of conserved water, the department shall issue a superseding provisional certificate reflecting the change in the original water right. Once the conservation project is completed, separate new certificates shall be issued as follows:
     (a) A certificate reflecting the change in the original water right;
     (b) A certificate for the use of conserved water allocated to the applicant that reflects the quantity of the right, and the place and purpose of use of the conserved water; and
     (c) A certificate reflecting a trust water right held by the state, with a priority date as determined in section 6 of this act.
     (5) Once approved by the department, a water right to conserved water allocated under this section shall be a water right with all rights and responsibilities as is accorded to any other water right recognized, permitted, or certificated under this chapter or chapter 90.44 RCW.

NEW SECTION.  Sec. 5   A new section is added to chapter 90.03 RCW to read as follows:
     The department shall adopt rules to implement sections 2 through 7 of this act.

NEW SECTION.  Sec. 6   A new section is added to chapter 90.03 RCW to read as follows:
     The priority date of any right to the use of conserved water, including uses under a trust water right, shall be either the same as the priority date of the water right from which the conserved water was allocated or one minute after such priority date, at the election of the applicant for allocation of the conserved water.

NEW SECTION.  Sec. 7   A new section is added to chapter 90.03 RCW to read as follows:
     The applicant and the department may agree upon an allocation of conserved water that is different from the presumptive allocation under section 4 of this act if the applicant and department determine that another allocation is consistent with the public interest in encouraging water conservation, in ensuring that necessary streamflows are maintained and achieved, and in managing public water resources to meet new water use demands. Where public funds are provided for the conservation measures, the percentage of conserved water allocated to the state as a trust water right shall not be less than the percentage that the public funds bear to the total funds provided to install or implement the conservation measures.