BILL REQ. #:  S-0957.4 

Read first time 02/05/09.   Referred to Committee on Environment, Water & Energy.

     AN ACT Relating to managing permit exempt groundwater withdrawals; and amending RCW 90.44.050 and 90.44.105.

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

Sec. 1   RCW 90.44.050 and 2003 c 307 s 1 are each amended to read as follows:
     (1) After June 6, 1945, no withdrawal of public groundwaters 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)).
     (2) After June 6, 1945, and until the effective date of this section, any withdrawal of public groundwaters for stock-watering purposes, or for the watering of a lawn or of a noncommercial garden not exceeding one-half acre in area, or for single or group domestic uses in an amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052, or for 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 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 at the option of the party making withdrawals of groundwaters 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.
     (3) After the effective date of this section, a withdrawal of public groundwaters is exempt from the application and permit requirements of this section as long as the beneficial use or uses of the public groundwaters do not individually or collectively exceed five thousand gallons a day for the following purposes:
     (a) A single domestic use or a group domestic use by six or fewer residences;
     (b) Watering of a noncommercial lawn or garden not exceeding one-half acre in area;
     (c) Stock watering use;
     (d) Commercial irrigation not exceeding one-half acre in area; and
     (e) Industrial or commercial use.
     (4) For any new permit exempt use commenced after the effective date of this section, the department shall require the person making any such new small withdrawal to meter the water use and to retain records of the amounts withdrawn. In areas in which instream flows are being affected or in areas in which withdrawals are reduced pursuant to subsection (6) of this section, the department may require periodic submittal to the department of the amounts withdrawn or the department may require the installation of electronic data recording and transmission devices.
     (5) At the option of the person making a withdrawal of groundwaters of the state not exceeding five thousand gallons per day, applications under this section may be filed and permits and certificates obtained in the same manner and under the same requirements as provided for in this chapter in the case of withdrawals in excess of five thousand gallons a day.
     (6) Notwithstanding subsection (3) of this section, the amount of public groundwaters that may be withdrawn that are exempt from permit requirements may be reduced to some lesser amount through rules adopted by the department when the department determines, in consultation with the department of fish and wildlife and federally recognized Indian tribes, that effective water management requires such a limitation. The rules may only be adopted for the protection of public groundwaters occurring in watersheds in which:
     (a) Salmonid stocks are listed or proposed for listing as threatened or endangered under the federal endangered species act or listed as critical or depressed under the state salmon and steelhead stock inventory;
     (b) Stream flows have been diminishing as a result of the reduction of base flows due to well withdrawals;
     (c) Surface waters or groundwaters have been fully appropriated;
     (d) Existing water rights have been restricted or interrupted or the basin has ever been closed;
     (e) There is an ongoing stream adjudication; or
     (f) The rules are necessary to prevent impairment of existing water rights or harm to fish, wildlife, navigation, or an existing public recreational use.
     (7) Notwithstanding subsections (3) through (5) of this section, after the effective date of this section, no new permit exempt withdrawal may be commenced or a new purpose of exempt use added by any person whose place of use is within a service area of a water purveyor that has sufficient capacity to provide water under existing water rights, provided a purveyor determines that it can provide water service on a timely and reasonable basis and the purveyor is willing to provide the service.
     (8) The priority date of a water right established through the groundwater permit exemption in this section is the date that water is first put to beneficial use for the exempt purpose in question. Permit exempt groundwater rights may be relinquished or abandoned through nonuse in the same manner as other water rights.
     (9) Permit exempt groundwater rights are subject to regulation in favor of senior water rights in the same manner as any other water right on the basis of priority date.
     (10) A permit exempt groundwater withdrawal may be supplied from more than one well, but all the wells combined may not exceed a total daily withdrawal of five thousand gallons under the exemption. An exempt withdrawal may be made from a well that also supplies water for a water right permit or certificate.
     (11) For the purposes of subsection (3) of this section, "stock watering use" means providing water for domestic farm animals for drinking and for maintenance of animal health and welfare. This includes water for cleaning animals and the buildings that the animals occupy and misting the animals for cooling purposes in hot weather. This does not include the use of water to cool or process and produce, irrigation of vegetation, or dust control, all of which constitute industrial or commercial water uses under this section.
     (12) By December 1, 2009, the department shall identify, and rank in priority order, all areas of the state in which the metering of existing groundwater withdrawals, including permit exempt withdrawals, is needed to effectively manage the waters of the state. The department shall convey that information in a report to the appropriate committees of the legislature. The report must include an estimate of the cost to the state to require such metering and to manage the resulting data and the cumulative cost to water right holders to implement comprehensive metering and reporting of groundwater in the highest priority areas.

Sec. 2   RCW 90.44.105 and 1997 c 446 s 1 are each amended to read as follows:
     (1)(a) 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 consolidate that right with a groundwater right exempt from the permit requirement under RCW 90.44.050, without affecting the priority of either of the water rights being consolidated. ((Such))
     (b) Upon receiving the permission from the department and the department of health, a group A water purveyor may consolidate the water rights of consenting owners of permit exempt wells within its service area. Notwithstanding subsection (2) of this section, the purveyor is not required to own a well in the same body of groundwater. However, all other requirements of subsection (2) of this section apply. The purveyor may furnish the water from a new well or wells approved by the department or may with approval from the department supply the water from one or more of the acquired wells. Once the consolidation action is completed, the department shall issue a water right certificate to the water purveyor.
     (2) A consolidation amendment or approval shall be issued only after publication of a notice of the application, a comment period, and a determination made by the department, in lieu of meeting the conditions required for an amendment under RCW 90.44.100, that: (((1))) (a) The exempt well taps the same body of public groundwater as the existing or future well to which the water right of the exempt well is to be consolidated; (((2))) (b) use of the exempt well or wells shall be discontinued upon approval of ((the)) a consolidation amendment to the permit or certificate; (((3))) (c) legally enforceable agreements have been entered to prohibit the construction of another exempt well to serve the area previously served by the exempt well to be discontinued, and such agreements are binding upon subsequent owners of the land through appropriate binding limitations on the title to the land; (((4))) (d) the exempt well or wells the use of which is to be discontinued will be properly decommissioned in accordance with chapter 18.104 RCW and the rules of the department; ((and (5))) (e) other existing rights, including ground and surface water rights and minimum stream flows adopted by rule, shall not be impaired; and (f) no detriment to the public interest shall occur. The notice shall be published by the applicant in a newspaper of general circulation in the county or counties in which the wells for the rights to be consolidated are located once a week for two consecutive weeks. The applicant shall provide evidence of the publication of the notice to the department. The comment period shall be for thirty days beginning on the date the second notice is published.
     (3) The amount of the water to be added to the holder's permit or certificate or the amount granted as a new water right certificate upon discontinuance of the exempt well shall be the average withdrawal from the well, in gallons per day, for the most recent five-year period preceding the date of the application, except that the amount shall not be less than eight hundred gallons per day for each residential connection or such alternative minimum amount as may be established by the department in consultation with the department of health, and shall not exceed five thousand gallons per day. The department shall presume that an amount identified by the applicant as being the average withdrawal from the well during the most recent five-year period is accurate if the applicant establishes that the amount identified for the use or uses of water from the exempt well is consistent with the average amount of water used for similar use or uses in the general area in which the exempt well is located. The department shall develop, in consultation with the department of health, a schedule of average household and small-area landscaping water usages in various regions of the state to aid the department and applicants in identifying average amounts used for these purposes. The presumption does not apply if the department finds credible evidence of nonuse of the well during the required period or credible evidence that the use of water from the exempt well or the intensity of the use of the land supported by water from the exempt well is substantially different than such uses in the general area in which the exempt well is located. The department shall also accord a presumption in favor of approval of such consolidation if the requirements of this subsection are met and the discontinuance of the exempt well is consistent with an adopted coordinated water system plan under chapter 70.116 RCW, an adopted comprehensive land use plan under chapter 36.70A RCW, or other comprehensive watershed management plan applicable to the area containing an objective of decreasing the number of existing and newly developed small groundwater withdrawal wells. The department shall provide a priority to reviewing and deciding upon applications subject to this subsection, and shall make its decision within sixty days of the end of the comment period following publication of the notice by the applicant or within sixty days of the date on which compliance with the state environmental policy act, chapter 43.21C RCW, is completed, whichever is later. The applicant and the department may by prior mutual agreement extend the time for making a decision.