Summary of Bill: Existing operations using less than 5.6 acre feet per year remain exempt from permitting requirements. Existing operations using more than 5.6 acre feet per year remain exempt from permitting requirements if:

the livestock operation files a registration;
water withdrawal thereafter does not exceed the amount in the registration; and
the livestock operation begins metering by December 31, 2012, if the operation is withdrawing water from a groundwater body that has been closed to further withdrawal by rule, that is in hydraulic continuity with surface waters that are closed to further appropriation by rule or have an established instream flow that is not regularly met, or that is in hydraulic continuity with surface waters with depressed or critical salmonid stock status.

Existing operations must obtain a water right permit, certificate, claim, a department-approved transfer of an existing water right, or a department-approved change or consolidation amendment for any amount of water use exceeding the registered annual quantity withdrawal limit contained in the operation's registration. Existing operations with a withdrawal for stock watering purposes of less than 5.6 acre feet per year must obtain a water right permit, certificate, claim, a department-approved transfer of an existing water right, or a department-approved change or consolidation amendment for any amount of water use exceeding 5.6 acre feet per year. Nothing in this act authorizes the impairment of, or operates to impair, any existing water right. Nothing in this act precludes an action, on the basis of priority date, in favor of senior water rights, whether such an action is brought by the holder of an existing right or by Ecology.

Any new withdrawal is exempt from permitting if the total withdrawal for stock watering purposes does not exceed 5.6 acre feet per year, and annual withdrawal quantities are metered and recorded. A new livestock operation must obtain a water right permit, certificate, claim, transfer, change or consolidation for any amount exceeding 5.6 acre feet per year.

An existing livestock operation that uses more than 5.6 acre feet of water for stock watering purposes must register with Ecology. The registration must include:

the name and address of either the water user or the stock watering operation, or both;
the name and address of the owner of the land on which the well, wells, or other means used for the withdrawal are located;
the legal description of the location of the point of withdrawal and the place of use;
the depth, and any other pertinent specifications, of the well or wells;
the date or approximate date, to the best of the registrant's knowledge, of the first beneficial use of groundwater withdrawn;
a description of the stock watering purposes associated with such a withdrawal and use; and
a declaration of the highest annual quantity, estimated to the nearest acre foot, of water withdrawn and beneficially used by the livestock operation for stock watering purposes during the period of January 1, 2005, through December 31, 2009.

Submittal of the registration is done under the penalty of perjury. An existing livestock operation that fails to register by December 31, 2010, has a priority date as of the date of filing the registration, unless the operation obtains an extension for good cause.

A registered livestock operation may request that Ecology do an extent and validity review of the water used for stock watering purposes so that the livestock operation may then submit a transfer or change application or an amendment to accommodate expansion or consolidation of registered livestock operations.

A registered livestock operation may request that Ecology do an extent and validity review of the water used for stock watering purposes so that the livestock operation may then submit a change or consolidation amendment be expedited between consenting owners of other registered livestock operations. An expedited change or consolidation amendment may tap different bodies of groundwater if Ecology:

conducts an extent and validity review and determines that withdrawing the water from a different body of groundwater would improve overall sustainability of groundwater resources, any increase in water withdrawn by the receiving operation will be matched by an equal or greater reduction by the sending operation, other existing water rights will not be impaired, the proposed change or consolidation will not be detrimental to the public welfare; and

if the withdrawals do tap different bodies of public groundwater, the priority date will be subordinated to existing rights in order to protect them from impairment.

A registered livestock operation that conserves water may increase the operation's numbers or types of livestock without notice to Ecology as long as the withdrawal quantities described in the registration are not exceeded or may elect to protect the excess from relinquishment and put that unused portion into the Trust Water Rights Program.

Staff Summary of Public Testimony: CON: There is concern about the Legislature acting while there is current litigation pending regarding this exemption. Many agricultural groups are actively involved in that litigation. Some organizations feel it is inappropriate to proceed while that litigation is ongoing. It is very important to let the litigation play out. With the size of cattle feeding operations, the exemption under this bill might as well be zero for us. The smallest cattle feeding operation is about 7,500 head of cattle, which means they would not be able to expand at all. There is some concern about how a livestock operation would prove up the amount of water they have been using. The bill as currently written does not address the economic realities of the livestock industry. This bill does not provide a realistic water management approach to stock watering. Many would like the Stock Water Working Group to continue discussions on this issue. It is necessary to allocate water resources in Eastern Washington in a fair, sustainable, and equitable way. Allocating an unlimited amount of Washington's groundwater to a single industry, the mega industrial feedlots and dairies, is very unfair to existing water right holders. Additionally, it sets up a bigger conflict in the future as water resources become more depleted. Finally, it prejudges the outcome of an existing lawsuit. Every other industry requiring water to do business must get a water right permit. There will be a call for legislative action after the lawsuit is decided. There are concerns about going to an acre foot per year limitation as it is not known how that will affect other users.

OTHER: Much of the bill is very good in concept. There are some concerns about timeframes. There has been a lot of effort and thought put into this bill. We have had a lot of uncertainty over this exemption in recent time, but the one thing we have had since 1945 is great flexibility. The change needs to duplicate that flexibility. It might be helpful to have an advisory group that could assist Ecology when implementing this bill. This bill strikes a middle ground between the environmental concerns and the needs of the industry. Resolution of the lawsuit one way or another will create chaos. The Legislature is best poised to propose a solution that makes sense for the environment and the industry. It would be nice to limit the focus of the bill so that the lawsuit can continue. However, there are real and very significant risks in allowing the litigation to play out.