BILL REQ. #:  S-4234.4 

READ FIRST TIME 02/03/10.   

     AN ACT Relating to the consolidation of permit exempt wells; and amending RCW 90.44.105.

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

Sec. 1   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.
     (b) Such a consolidation amendment 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))) (i) The exempt well either taps or is in connection with the same body of public groundwater ((as the well to)) in which the holder has a water right ((of the exempt well is to be consolidated)) to withdraw groundwater or is within the service area of an existing publicly owned group A or group B water system; (((2))) (ii) use of the exempt well shall be discontinued upon approval of the consolidation amendment to the permit or certificate; (((3))) (iii) 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))) (iv) 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 unless the department authorizes that the well may continue to be used for groundwater monitoring purposes; and (((5))) (v) other existing rights, including ground and surface water rights and minimum stream flows adopted by rule, shall not be impaired.
     (c) 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.
     (2) The amount of the water to be added to the holder's permit or 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.
     (3) If an existing, publicly owned and operated group A or group B water system, as those terms are defined in RCW 70.119A.020, is unable to serve proposed new development within or adjacent to the approved service area of the water system because it does not have adequate water rights or a sufficient number of connections, and the proposed new development would then seek to obtain water supply under the groundwater permit exemption in RCW 90.44.050, the water system may consolidate with its water right an additional quantity of water authorized to be withdrawn under the permit exemption in RCW 90.44.050 and necessary to serve the proposed new development subject to the following requirements:
     (a) The water system shall publish public notice of the intent to consolidate an exempt withdrawal in a newspaper of general circulation in the county or counties in which the water system and the proposed new development are located once a week for two consecutive weeks;
     (b) The water system shall provide evidence of publication of the notice to the department, the department of health, and the local government with land use authority over the proposed new development;
     (c) Upon the date of receipt by the department of the notice of publication from the water system, a thirty-day review and comment period shall exist during which the department shall: (i) Review public comments; (ii) determine whether water is legally available for purposes of the consolidation; and (iii) determine whether the proposed consolidation would impair existing rights including instream flows;
     (d) The local government with land use authority over the proposed new development shall ensure that the proposed consolidation 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;
     (e) The water system must make any necessary amendments to its water system plan and receive approval from the department of health to authorize the addition of new connections, or revise or modify the retail service area boundary;
     (f) Legally enforceable agreements have been entered to prohibit the construction of an exempt well to serve the area of the proposed new development, and such agreements are binding upon subsequent owners of the land through appropriate binding limitations on the title to the land;
     (g) The department shall consult with the department of health and the local government with land use authority over the proposed new development to ensure compliance with this subsection prior to deciding upon applications subject to this subsection;
     (h) 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;
     (i) In no case may the quantity of water consolidated with the water system's water rights exceed either five thousand gallons per day or fourteen new connections;
     (j) The water system must separately meter both existing connections and new connections to be added under this section;
     (k) Any letter, certificate, or other statement that water is available to serve the proposed new development utilizing the procedure in this subsection to satisfy the water availability requirement of RCW 19.27.097 or 58.17.110 must be provided to the department, the department of health, and the local government with land use authority upon issuance by the water system;
     (l) A water system may exercise the authority in this section on multiple occasions, but only until a total of fourteen residential connections or five thousand gallons per day of water has been consolidated with the water rights of the water system; and
     (m) After beneficial use has occurred, the water system shall comply with the provisions of RCW 90.03.330 to obtain a certificate of water right.
     (4) Any determination by the department under this section is appealable to the pollution control hearings board under chapter 43.21B RCW.