BILL REQ. #:  H-0151.3 

Read first time 01/23/09.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to establishing a pilot local water management program in one qualified jurisdiction; amending RCW 90.03.380, 90.44.100, and 43.21B.110; reenacting and amending RCW 90.14.140; adding a new chapter to Title 90 RCW; and providing an expiration date.

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

NEW SECTION.  Sec. 1   The legislature finds that the Walla Walla watershed community faces substantial challenges in planning for future water use and meeting the needs of fish, farms, and people. The legislature further finds that the participants in the Walla Walla watershed planning group have demonstrated exceptional cooperation in developing an innovative water management concept that enhances flexibility in water use while protecting ecological functions. The legislature also recognizes the significant contribution of representative William Grant's leadership in the creation of a Walla Walla pilot design to authorize local water management activity.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Basin" means the WRIA where the planning area is located.
     (2) "Board" means a water management board created under this chapter.
     (3) "Department" means the department of ecology.
     (4) "Director" means the director of the department of ecology.
     (5) "Initiating entities" means the county boards of commissioners within the planning area, the city council of the largest Washington city in the planning area, the largest water user in the planning area, and all federally recognized tribes owning land within the planning area.
     (6) "Instream flow" means a minimum flow under chapter 90.03 or 90.22 RCW or a base flow under chapter 90.54 RCW that has been set by rule.
     (7) "Local water management program" means the water bank, any local water plans authorized by the board, and any other activities authorized by section 5 of this act.
     (8) "Local water plan" means a voluntary water management plan developed by local water rights holders within the planning area to manage their water use in a manner that enhances stream flows in exchange for greater flexibility in exercising the water rights.
     (9) "Planning area" means the entirety or a subsection of a single or multiple WRIA as identified in the creation of a board under this chapter.
     (10) "Trust water right" means any water right acquired by the state under chapter 90.42 RCW for management in the state's water rights program.
     (11) "Watershed plan" means a plan adopted under chapter 90.82 RCW.
     (12) "WRIA" means a water resource inventory area established in chapter 173-500 WAC as it existed on January 1, 1997.

NEW SECTION.  Sec. 3   (1) Initiating entities may collectively petition the department in order to establish a water management board.
     (2) The department, in consultation with the initiating entities, may create a board if:
     (a) The initiating entities demonstrate to the department that the following criteria are satisfied:
     (i) Community support for the development of a local watershed management plan, including the affected tribes, local governments, and general community support;
     (ii) There is commitment on the part of the initiating entities and the affected community to enhance instream flows for fish; and
     (iii) An adequate monitoring network is in place, as determined by the department;
     (b) The department determines the following:
     (i) An instream flow rule for the WRIA or WRIAs in the planning area has been adopted since 1998;
     (ii) The planning area is located within one of the sixteen fish-critical basins designated by the department in its March 2003 "Washington Water Acquisition Program" report and demonstrates a significant history of severely impaired flows; and
     (iii) The watershed planning unit has completed a watershed implementation plan adopted under chapter 90.82 RCW and salmon recovery implementation plan adopted under chapter 77.85 RCW.
     (3) The department, in determining whether to create a board, must give strong consideration to basins that have completed a judicial proceeding to adjudicate water rights under chapter 90.03 RCW.

NEW SECTION.  Sec. 4   (1)(a) Each board must be composed of the following members:
     (i) All affected federally recognized tribes within the planning area will be invited to participate and may appoint one member each;
     (ii) The following entities must each appoint one member:
     (A) Each county board of commissioners within the planning area;
     (B) The city council of the largest Washington city in the planning area; and
     (C) The board of directors of the entity or the person who uses the greatest quantity of water in the planning area;
     (iii) The conservation districts' board of supervisors in the planning area must jointly appoint one member; and
     (iv) The members under (a)(i) through (iii) of this subsection must appoint the remaining three members of the board. These three members must be residents of the planning area. One member must represent planning area water users. One member must represent environmental interests in the planning area. One member must be a citizen at large.
     (b) If for any reason one of the required governments or entities to be represented on the board declines to participate, the remaining board members may invite another local government within the planning area to join the board.
     (2) Each member of the board serves a two-year term and may be reappointed for an additional term. Members may continue to serve on the board until a new appointment is made.
     (3) The board must create a policy advisory group and a water resource panel.
     (a) For the policy advisory group, the board must invite participation from the department and the department of fish and wildlife, other affected state agencies, and other interests as appropriate. The board may also appoint members from local government agencies, academia, watershed and salmon recovery entities, businesses, and agricultural and environmental organizations as the board deems appropriate.
     (b) The water resource panel must assist and advise the board in coordinating and developing water resource-related programs, planning, and activities within the planning area, including the coordination of efforts with all jurisdictions of the planning area and development of the board's strategic actions.
     (c) For the water resource panel, the board must appoint members to the water resource panel who have expertise and understanding regarding surface water and groundwater monitoring and hydrological analysis, irrigation management and engineering, water rights, and fisheries habitat and economic development. The board must invite participation from the department and the department of fish and wildlife.
     (d) The water resource panel must provide technical assistance for the development of the local water plans and provide advice to the board on the criteria for establishment of local water plans and the approval, denial, or modification of the local water plans.
     (4) A board member, employee, or contractor may not engage in any act that is in conflict with the proper discharge of their official duties. A person is deemed to have a conflict of interest if he or she has an ownership interest in a water right that the board is asked to take action on, or has an ownership, membership, or financial interest in any entity, project, development, or venture related to a matter before the board, including the review and approval of a local water plan.

NEW SECTION.  Sec. 5   (1) The board has the following authority, duties, and responsibilities:
     (a) Assume the duties, responsibilities, and all current activities of the watershed planning unit and the initiating governments authorized in RCW 90.82.040;
     (b) Develop strategic actions for the planning area by building on the watershed plan;
     (c) Adopt and revise criteria, guidance, and processes to effectuate the purpose of this chapter;
     (d) Administer the local water plan process;
     (e) Manage the water bank as authorized under this chapter;
     (f) Acquire water rights by donation, purchase, or lease;
     (g) Represent the interests of the planning area in local, state, tribal, federal, and multistate basin water planning initiatives and programs; and
     (h) Enter into agreements with water rights holders to not divert water that becomes available as a result of interstate agreements, local water plans, water bank activities, or other programs and projects endorsed by the board and the department.
     (2) The board may acquire, purchase, hold, lease, manage, occupy, and sell real and personal property, including water rights, or any interest in water rights, enter into and perform all necessary contracts, appoint and employ necessary agents and employees, including an executive director and fix their compensation, employ contractors including contracts for professional services, and do all lawful acts required and expedient to carry out the purposes of this chapter.
     (3) The board constitutes an independently funded entity, and may provide for its own funding as determined by the board. The board may solicit and accept grants, loans, and donations and may adopt fees for services it provides. The board may not impose taxes or acquire property, including water rights, by the exercise of eminent domain. The board may distribute available funds as grants or loans to local water plans or other water initiatives and projects that will further the goals of the board.
     (4) The ability of the board to fully meet its duties under this chapter is dependent on the level of funding available to the board. If sufficient funding is not available to the board to carry out its duties, the board may, in consultation with the department, establish a plan that determines and sets priorities for implementation of the board's duties.
     (5) The board, and its members and staff, acting in their official capacities, are immune from liability and are not subject to any cause of action or claim for damages arising from acts or omissions engaged in under this chapter.
     (6) Upon the creation of the board, and for the duration of the board, the existing planning unit for the planning area, established under RCW 90.82.040, is dissolved and all assets, funds, files, planning documents, pending plans and grant applications, and other current activities of the planning unit are transferred to the board.

NEW SECTION.  Sec. 6   The board, in collaboration with the department, must provide a written report to the legislature by December 1, 2012, December 1, 2015, and December 1, 2018. The report must summarize the actions, funding, and accomplishments of the board in the previous three years, and submit recommendations for improvement of the local water plan process. The 2018 report must also contain recommendations on the future of the board.

NEW SECTION.  Sec. 7   (1) The board may establish a water bank to provide a mechanism for the holders of water rights within the planning area to voluntarily deposit them in the water bank on a temporary or permanent basis.
     (2) The board has the following authority to manage the water bank in the planning area:
     (a) The board may accept a surface water right or a groundwater right into the water bank on a permanent or temporary basis under terms and conditions agreed upon by the water rights holder and the board.
     (b) A water right or portion thereof that will be made available under local water plans for stream flow enhancement may be deposited into the water bank on a temporary or permanent basis defined by the terms of the local water plan, as provided in this chapter.
     (c) Except as provided in (d) of this subsection, the board must accept a water right deposited for instream flow into the water bank without conducting a review of the extent and validity of the water right and the water right may not thereafter be authorized for any other purposes. A water right placed in the water bank that has not been tentatively determined as to its extent and validity is not entitled to be protected from impairment by another water right.
     (d) The board may manage a water right that has been deposited into the water bank as mitigation for impairment to instream flows and other existing water rights. However, the water right may only be available for mitigation to the extent the department determines the water right is valid and use of the water right for mitigation will not cause detriment or injury to existing water rights.
     (3)(a) A water right deposited in the water bank on a temporary basis remains in the ownership of the water rights holder and not the state of Washington or the board.
     (b) A water right deposited in the water bank on a permanent basis must be transferred to the state of Washington as a trust water right.
     (4) A water right or portion of a water right in the water bank is not subject to loss by forfeiture under RCW 90.14.130 through 90.14.200. When a temporary water right is withdrawn from the water bank, the time period that the water right was in the water bank may not be calculated as time water was not used for purposes of RCW 90.14.160, 90.14.170, and 90.14.180.
     (5) When a temporarily deposited water right is withdrawn from the water bank, the time period that the water right was in the water bank may not be included in the five years of prior water use for purposes of applications to add acreage or purposes of water use under RCW 90.03.380(1).
     (6) Nothing in this chapter forecloses or diminishes the rights of any person to apply to the department to transfer a water right to the state trust water rights program under the authority of chapter 90.42 RCW or to apply for a change of a water right to a water conservancy board authorized under chapter 90.80 RCW.

NEW SECTION.  Sec. 8   (1) The board shall adopt guidelines and criteria for filing, review, and approval of a local water plan. The board shall also develop a dispute resolution process that provides for water users, the board, and the department to resolve disputes regarding the implementation and enforcement of a local water plan.
     (2) A water user or group of water users within the planning area, organized as provided in guidelines adopted by the board, may submit a proposed local water plan to the board.
     (3) A local water plan must include:
     (a) A determination by the board of the baseline water use for all water rights involved in the local water plan, based on the guidelines adopted by the board, and in consultation with the water resource panel. The baseline documents regarding water use that are submitted by the water users may not be used by the department to determine the validity of the water rights in any future administrative or regulatory actions;
     (b) A clearly defined set of practices that provide for flexibility of water use as defined in subsection (4) of this section;
     (c) An estimate of the amount of water that would remain instream either long term or during critical flow periods for fish;
     (d) Performance measures and options for achieving reductions in total water use from baseline; and
     (e) Measurement, tracking, and monitoring measures and procedures that ensure the implementation and enforcement of the measures for flexibility of water use, enhancement of the stream flows, and other elements, terms, and conditions in the local water plan.
     (4) The local water plan may have elements and provide rights to the use and application of water that are not otherwise authorized in the water rights, including:
     (a) The ability to use the quantity of water defined as baseline in section 12(1)(a) of this act on new or additional places of use, from new or additional points of diversion or withdrawal, and at different times of the year;
     (b) The ability to change or add a source of water supply including the use of groundwater to supplement surface water rights and the ability to implement the conjunctive use of the groundwater and surface water; and
     (c) The storage of water and infiltration of the water to the groundwater to supplement shallow groundwater withdrawals or for the purpose of replenishing the aquifer.
     (5) To participate in a local water plan, water rights holders must: (a) Agree to allow a portion or all of their baseline water use to remain instream, as specified in the approved local water plan; (b) have existing operable water conveyance infrastructure in place and available for use; (c) agree that any water made available for stream flow enhancement may not be diverted from the water source and used during the term of the local water plan, but instead must be deposited into the water bank or, upon request by the water rights holder, transferred to the trust water rights program consistent with chapter 90.42 RCW; (d) measure and monitor their water use, stream flows upstream and downstream of the boundaries of the plan, and groundwater levels within the boundaries of the plan; and (e) commit to staying in the program consistent with criteria established by the board.
     (6) The water users must submit annual reports to the department and the board regarding contract performance, consistent with the guidelines adopted by the board.
     (7) A local water plan may be effective for a term of one to ten years.

NEW SECTION.  Sec. 9   (1) The board must provide a thirty-day public notice period for the proposal for a local water plan and accept comments from all interested persons during that period.
     (2) To become effective, the local water plan must be approved by both the board and the department. A proposed local water plan must not be approved if the board and the department determine the local water plan will not substantially enhance instream flow conditions.
     (3) The approved local water plan must be signed by the executive director of the board, by the director, and by all water users participating in the local water plan. The local water plan is a contract among the board, the department, and the water users in which all parties agree to abide by all terms and conditions of the local water plan.
     (4) If an approved local water plan is not in compliance with its terms and conditions, the board shall, consistent with the dispute resolution process adopted by the board, seek compliance. If a local water plan is revoked, the water users in the local water plan must thereafter exercise the water rights only as the water rights were authorized and conditioned prior to the approval of the local water plan, and all rights and duties that were terms in the local water plan lapse and are not valid or enforceable.

NEW SECTION.  Sec. 10   (1) Any person not party to the local water plan and aggrieved by the director's decision may appeal the decision to the pollution control hearings board as provided under RCW 43.21B.230.
     (2) A water rights holder who believes the holder's water right has been impaired by any action under this chapter may request that the department review the impairment claim. If the department determines that some action under this chapter is impairing existing rights, the department, the board, and the water users must amend the local water plan to eliminate the impairment. Any decision of the department to alter or not alter a local water plan is appealable to the pollution control hearings board under RCW 43.21B.230.

NEW SECTION.  Sec. 11   (1) A local water plan expires by its terms, by withdrawal of one or more water users to the local water plan, or upon agreement by all parties to the contact. Upon the expiration of a local water plan that has been operating for five or more years, the water users may request that the board and the department make the elements of the local water plan, including water deposited to the water bank for placement in the trust water rights program, permanent authorizations and conditions for use of the water rights.
     (2) The request under subsection (1) of this section must be evaluated based on whether:
     (a) The determination of the baseline water use adequately analyzed the extent and validity of the donated water right; and
     (b)(i) Whether there is injury or detriment to other existing water rights; or
     (ii) The written approval obtained from the holder of an impaired water right is continued or renewed.
     (3) If the board and the department approve the request under subsection (1) of this section, the department shall issue superseding water rights consistent with the management and uses of the water under the local water plan. That portion of the water rights deposited in the water bank for placement in the trust water rights program must be made permanent and transferred in accordance with chapter 90.42 RCW.
     (4) If the local water plan expires and the water management and uses under the local water plan are not granted approval to be permanent, the water users in the local water plan must thereafter exercise the water rights only as the water rights were authorized and conditioned prior to the local water plan, and all rights and duties that were terms in the local water plan lapse and are not valid or enforceable.

NEW SECTION.  Sec. 12   (1) The water rights in the local water plan as authorized for the uses described in section 8(4) of this act are:
     (a) Not subject to either the approval of the department under RCW 90.03.380 through 90.03.390, 90.44.100, and 90.44.105, or a tentative determination of the validity and extent of the water rights;
     (b) Not subject to loss by forfeiture under RCW 90.14.130 through 90.14.200 during the period of time from when the local water plan is approved to the expiration or nullification of the local water plan as provided in section 11 of this act; and
     (c) Not to be exercised in a manner that would result in injury or detriment to other existing water rights unless express written approval is obtained from the holder of the impaired water right. To allow impacts to existing instream flow rights, the board and the department must agree that the flow benefits provided by a local water plan outweigh the impacts on existing instream flow rights.
     (2) The years during the period of time when the local water plan is operational may not be considered or calculated as a period of time that the water was not applied to use for purposes of RCW 90.14.130 through 90.14.200. Further, the years during this period of time may not be considered or calculated as a period of time that the water was not applied to use and for purposes of future applications to change the water right for additional purposes or acreage under RCW 90.03.380.

NEW SECTION.  Sec. 13   The local water management program authorized by this chapter must be piloted in a basin located east of the crest of the Cascades in a county with a population between fifty-five thousand and sixty thousand people, as reported in the 2000 census.

Sec. 14   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, "sufficient cause" shall be defined as 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) Active service in the armed forces of the United States during military crisis;
     (c) Nonvoluntary service in the armed forces of the United States;
     (d) The operation of legal proceedings;
     (e) 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) 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;
     (h) 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) Water conservation measures implemented under the Yakima river basin water enhancement project, so long as the conserved water is reallocated in accordance with the provisions of P.L. 103-434;
     (j) 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
     (k) The reduced use of irrigation water resulting from crop rotation. For purposes of this subsection, crop rotation means the temporary 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.
     (2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any 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;
     (i) If such a right is involved in an approved local water plan created under section 9 of this act, provided the right is subject to an agreement not to divert under section 5 of this act, or provided the right is deposited into a water bank created under section 7 of this act.
     (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.

Sec. 15   RCW 90.03.380 and 2003 c 329 s 2 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 pursuant to the water right, reduced by the estimated annual amount of return flows, averaged over the two years of greatest use within the most recent five-year period of continuous beneficial use of the water right. Before any transfer of such right to use water or change of the point of diversion of water or change of purpose of use can be made, any person having an interest in the transfer or change, shall file a written application therefor with the department, and the application shall not be granted until notice of the application is published as provided in RCW 90.03.280. If it shall appear that such transfer or such change may be made without injury or detriment to existing rights, the department shall issue to the applicant a certificate in duplicate granting the right for such transfer or for such change of point of diversion or of use. The certificate so issued shall be filed and be made a record with the department and the duplicate certificate issued to the applicant may be filed with the county auditor in like manner and with the same effect as provided in the original certificate or permit to divert water. The time period that the water right was in a water bank created under section 7 of this act, in an approved local water plan created under section 9 of this act, or the water right was subject to an agreement to not divert under section 5 of this act will not be included in the most recent five-year period of continuous beneficial use for the purpose of determining the annual consumptive quantity under this section. If the water right has not been used during the previous five years but the nonuse of which qualifies for one or more of the statutory good causes or exceptions to relinquishment in RCW 90.14.140 and 90.44.520, the period of nonuse is not included in the most recent five-year period of continuous beneficial use for purposes of determining the annual consumptive quantity of water under this section.
     (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) 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)(a) Pending applications for new water rights are not entitled to protection from impairment, injury, or detriment when an application relating to an existing surface or ground water right is considered.
     (b) Applications relating to existing surface or ground water rights may be processed and decisions on them rendered independently of processing and rendering decisions on pending applications for new water rights within the same source of supply without regard to the date of filing of the pending applications for new water rights.
     (c) Notwithstanding any other existing authority to process applications, including but not limited to the authority to process applications under WAC 173-152-050 as it existed on January 1, 2001, an application relating to an existing surface or ground water right may be processed ahead of a previously filed application relating to an existing right when sufficient information for a decision on the previously filed application is not available and the applicant for the previously filed application is sent written notice that explains what information is not available and informs the applicant that processing of the next application will begin. The previously filed application does not lose its priority date and if the information is provided by the applicant within sixty days, the previously filed application shall be processed at that time. This subsection (5)(c) does not affect any other existing authority to process applications.
     (d) Nothing in this subsection (5) is intended to stop the processing of applications for new water rights.
     (6) No applicant for a change, transfer, or amendment of a water right may be required to give up any part of the applicant's valid water right or claim to a state agency, the trust water rights program, or to other persons as a condition of processing the application.
     (7) In revising the provisions of this section and adding provisions to this section by chapter 237, Laws of 2001, the legislature does not intend to imply legislative approval or disapproval of any existing administrative policy regarding, or any existing administrative or judicial interpretation of, the provisions of this section not expressly added or revised.
     (8) The development and use of a small irrigation impoundment, as defined in RCW 90.03.370(8), does not constitute a change or amendment for the purposes of this section. The exemption expressly provided by this subsection shall not be construed as requiring a change or transfer of any existing water right to enable the holder of the right to store water governed by the right.
     (9) This section does not apply to a water right involved in an approved local water plan created under section 9 of this act, a water right that is subject to an agreement not to divert under section 5 of this act, or a water right that is deposited into a water bank created under section 7 of this act.

Sec. 16   RCW 90.44.100 and 2003 c 329 s 3 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 groundwater right, the holder of a valid right to withdraw public groundwaters may, without losing the holder's priority of right, construct wells or other means of withdrawal at a new location in substitution for or in addition to those at the original location, or the holder may change the manner or the place of use of the water.
     (2) An amendment to construct replacement or a new additional well or wells at a location outside of the location of the original well or wells or to change the manner or place of use of the water shall be issued only after publication of notice of the application and findings as prescribed in the case of an original application. Such amendment shall be issued by the department only on the conditions that: (a) The additional or replacement well or wells shall tap the same body of public groundwater as the original well or wells; (b) where a replacement well or wells is approved, the use of the original well or wells shall be discontinued and the original well or wells shall be properly decommissioned as required under chapter 18.104 RCW; (c) where an additional well or wells is constructed, the original well or wells may continue to be used, but the combined total withdrawal from the original and additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and (d) other existing rights shall not be impaired. The department may specify an approved manner of construction and shall require a showing of compliance with the terms of the amendment, as provided in RCW 90.44.080 in the case of an original permit.
     (3) The construction of a replacement or new additional well or wells at the location of the original well or wells shall be allowed without application to the department for an amendment. However, the following apply to such a replacement or new additional well: (a) The well shall tap the same body of public groundwater as the original well or wells; (b) if a replacement well is constructed, the use of the original well or wells shall be discontinued and the original well or wells shall be properly decommissioned as required under chapter 18.104 RCW; (c) if a new additional well is constructed, the original well or wells may continue to be used, but the combined total withdrawal from the original and additional well or wells shall not enlarge the right conveyed by the original water use permit or certificate; (d) the construction and use of the well shall not interfere with or impair water rights with an earlier date of priority than the water right or rights for the original well or wells; (e) the replacement or additional well shall be located no closer than the original well to a well it might interfere with; (f) the department may specify an approved manner of construction of the well; and (g) the department shall require a showing of compliance with the conditions of this subsection (3).
     (4) As used in this section, the "location of the original well or wells" is the area described as the point of withdrawal in the original public notice published for the application for the water right for the well.
     (5) The development and use of a small irrigation impoundment, as defined in RCW 90.03.370(8), does not constitute a change or amendment for the purposes of this section. The exemption expressly provided by this subsection shall not be construed as requiring an amendment of any existing water right to enable the holder of the right to store water governed by the right.
     (6) This section does not apply to a water right involved in an approved local water plan created under section 9 of this act or a water right that is deposited into a water bank created under section 7 of this act.

Sec. 17   RCW 43.21B.110 and 2003 c 393 s 19 are each amended to read as follows:
     (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:
     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.
     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, 90.14.130, 90.48.120, and 90.56.330.
     (c) A final decision by the department or director made under this act.
     (d) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.
     (((d))) (e) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.
     (((e))) (f) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.
     (((f))) (g) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.
     (((g))) (h) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
     (((h))) (i) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
     (2) The following hearings shall not be conducted by the hearings board:
     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
     (c) Proceedings conducted by the department, or the department's designee, under RCW 90.03.160 through 90.03.210 or 90.44.220.
     (d) Hearings conducted by the department to adopt, modify, or repeal rules.
     (e) Appeals of decisions by the department as provided in chapter 43.21L RCW.
     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the administrative procedure act, chapter 34.05 RCW.

NEW SECTION.  Sec. 18   Sections 1 through 13 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION.  Sec. 19   This act expires June 30, 2019.