State of Washington | 61st Legislature | 2009 Regular Session |
READ FIRST TIME 02/11/09.
AN ACT Relating to improving the effectiveness of water bank authorization and exchange provisions; amending RCW 90.42.100, 90.42.040, and 90.42.080; adding new sections to chapter 90.42 RCW; adding a new section 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 many watershed
groups and programs, including but not limited to watershed planning
units operating under chapter 90.82 RCW, have proposed or considered
using the state trust water rights program for water banking purposes
to meet vital instream and out-of-stream needs within a watershed or
region. The legislature also finds that water banking can: Provide
critical tools to make water supplies available when and where needed
during times of drought; improve stream flows and preserve instream
values during fish critical periods; reduce water transaction costs,
time, and risk to purchasers; facilitate fair and efficient
reallocation of water from one beneficial use to another; provide water
supplies to offset impacts related to future development and the
issuance of new water rights; and facilitate water agreements that
protect upstream community values while retaining flexibility to meet
critical downstream water needs in times of scarcity. The legislature
therefore declares that the intent of this act is to provide clear
authority for water banking throughout the state and to improve the
effectiveness of the state trust water rights program.
Sec. 2 RCW 90.42.100 and 2003 c 144 s 2 are each amended to read
as follows:
(1) The department is hereby authorized to use the trust water
rights program ((in the Yakima river basin)) for water banking purposes
statewide.
(2) Water banking may be used for one or more of the following
purposes:
(a) To authorize the use of trust water rights to mitigate for
water resource impacts, future water supply needs, or any beneficial
use under chapter 90.03, 90.44, or 90.54 RCW, consistent with any terms
and conditions established by the transferor, except that within the
Yakima river basin return flows from water rights authorized in whole
or in part for any purpose shall remain available as part of the Yakima
basin's total water supply available and to satisfy existing rights for
other downstream uses and users;
(b) To document transfers of water rights to and from the trust
water rights program; and
(c) To provide a source of water rights the department can make
available to third parties on a temporary or permanent basis for any
beneficial use under chapter 90.03, 90.44, or 90.54 RCW.
(3) The department shall not use water banking to:
(a) Cause detriment or injury to existing rights;
(b) Issue temporary water rights or portions thereof for new
potable uses requiring an adequate and reliable water supply under RCW
19.27.097;
(c) Administer federal project water rights, including federal
storage rights; or
(d) Allow carryover of stored water in the Yakima basin from one
water year to another water year if it would negatively impact the
total water supply available.
(4) Nothing in this section may be interpreted or administered in
a manner that precludes the use of the department's existing authority
to process trust water rights applications under this chapter or to
process water right applications under chapter 90.03 or 90.44 RCW.
(5) For purposes of this section and RCW 90.42.135, "total water
supply available" shall be defined as provided in the 1945 consent
decree between the United States and water users in the Yakima river
basin, and consistent with later interpretation by state and federal
courts.
Sec. 3 RCW 90.42.040 and 2002 c 329 s 8 are each amended to read
as follows:
(1) All trust water rights acquired by the state shall be placed in
the state trust water rights program to be managed by the department.
Trust water rights acquired by the state shall be held or authorized
for use by the department for instream flows, irrigation, municipal, or
other beneficial uses consistent with applicable regional plans for
pilot planning areas, or to resolve critical water supply problems.
The state may acquire a groundwater right to be placed in the state
trust water rights program. To the extent practicable and subject to
legislative appropriation, trust water rights acquired in an area with
an approved watershed plan developed under chapter 90.82 RCW shall be
consistent with that plan if the plan calls for such acquisition.
(2) The department shall issue a water right certificate in the
name of the state of Washington for each permanent trust water right
conveyed to the state indicating the quantity of water transferred to
trust, the reach or reaches of the stream((, the quantity)) or the body
of public groundwater that constitutes the place of use of the trust
water right, and the use or uses to which it may be applied. A
superseding certificate shall be issued that specifies the amount of
water the water right holder would continue to be entitled to as a
result of the water conservation project. The superseding certificate
shall retain the same priority date as the original right. For
nonpermanent conveyances, the department shall issue certificates or
such other instruments as are necessary to reflect the changes in
purpose or place of use or point of diversion or withdrawal.
(3) A trust water right retains the same priority date as the water
right from which it originated, but as between ((them)) the two rights,
the trust right shall be deemed to be inferior in priority unless
otherwise specified by an agreement between the state and the party
holding the original right.
(4) Exercise of a trust water right may be authorized only if the
department first determines that neither water rights existing at the
time the trust water right is established, nor the public interest will
be impaired. If impairment becomes apparent during the time a trust
water right is being exercised, the department shall cease or modify
the use of the trust water right to eliminate the impairment. A trust
water right acquired by the state and held or authorized for beneficial
use by the department is considered to be exercised as long as it is in
the trust water rights program. For the purposes of RCW 90.03.380(1)
and 90.42.080(9), the consumptive quantity of a trust water right
acquired by the state and held or authorized for use by the department
is equal to the consumptive quantity of the right prior to transfer
into the trust water rights program.
(5) Before any trust water right is created or modified, the
department shall, at a minimum, require that a notice be published in
a newspaper of general circulation published in the county or counties
in which the storage, diversion, and use are to be made, and in other
newspapers as the department determines is necessary, once a week for
two consecutive weeks. At the same time the department shall send a
notice containing pertinent information to all appropriate state
agencies, potentially affected local governments and federally
recognized tribal governments, and other interested parties.
(6) RCW 90.14.140 through 90.14.230 have no applicability to trust
water rights held by the department under this chapter or exercised
under this section.
(7) RCW 90.03.380 has no applicability to trust water rights
acquired by the state through the funding of water conservation
projects.
(8) ((Subsections (4) and (5) of this section do not apply to a
trust water right resulting from a donation for instream flows
described in RCW 90.42.080(1)(b) or to a trust water right leased under
RCW 90.42.080(8) if the period of the lease does not exceed five years.
However, the department shall provide the notice described in
subsection (5) of this section the first time the trust water right
resulting from the donation is exercised.)) Where a portion of an existing water right that is acquired
or donated to the trust water rights program will assist in achieving
established instream flows, the department shall process the change or
amendment of the existing right without conducting a review of the
extent and validity of the portion of the water right that will remain
with the water right holder.
(9)
Sec. 4 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 surface
water or groundwater 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 surface water ((from a body of
water)) or groundwater chooses to donate all or a portion of the
person's water right to the trust water system to assist in providing
instream flows or to preserve surface water or groundwater resources 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) Except as provided in subsections (10) and (11) of this
section, 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)) a trust water right resulting from
((the)) a 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 except that the consumptive quantity of a trust water right
acquired by the state and held or authorized for use by the department
is equal to the consumptive quantity of the right prior to transfer
into the trust water rights program.
(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) Except as provided in subsections (10) and (11) of this
section, 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)) a 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. For a trust water right acquired by the state and held or
authorized for use by the department, the consumptive quantity of the
right when it reverts to the donor or person from whom it was acquired
is equal to the consumptive quantity of the right prior to transfer
into the trust water rights program.
(10) For water rights donated or leased under subsection (4) or (8)
of this section where nonuse of the water right is excused under RCW
90.14.140(1):
(a) The department shall calculate the amount of water eligible to
be acquired by looking at the extent to which the right was exercised
during the most recent five-year period preceding the date where nonuse
of the water right was excused under RCW 90.14.140(1); and
(b) The total of the donated or leased portion of the water right
and the portion of the water right remaining with the water right
holder shall not exceed the extent to which the water right was
exercised during the most recent five-year period preceding the date
nonuse of the water right was excused under RCW 90.14.140(1).
(11) For water rights donated or leased under subsection (4) or (8)
of this section where nonuse of the water right is exempt under RCW
90.14.140(2) (a) or (d):
(a) The amount of water eligible to be acquired shall be based on
historical beneficial use; and
(b) The total of the donated or leased portion of the water right
and the portion of the water right the water right holder continues to
use shall not exceed the historical beneficial use of that right during
the duration of the trust.
NEW SECTION. Sec. 5 A new section is added to chapter 90.42 RCW
to read as follows:
Costs incurred by the department associated with water service
contracts with federal agencies may be recovered by the department from
persons withdrawing water or credits for water associated with water
banking purposes as a condition of the exercise of a water right
supplied from a federal water project.
NEW SECTION. Sec. 6 A new section is added to chapter 90.03 RCW
to read as follows:
For purposes of calculating annual consumptive quantity as defined
under RCW 90.03.380(1), if, within the most recent five-year period,
the water right has been in the trust water rights program under
chapter 90.38 or 90.42 RCW, or the nonuse of the water right has been
excused from relinquishment under RCW 90.14.140, the department shall
look to the most recent five-year period of continuous beneficial use
preceding the date where the excuse for nonuse under RCW 90.14.140 was
established and remained in effect.
NEW SECTION. Sec. 7 A new section is added to chapter 90.42 RCW
to read as follows:
The department may adopt rules as necessary to implement this
chapter.
NEW SECTION. Sec. 8 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.