BILL REQ. #: S-4682.1
State of Washington | 61st Legislature | 2010 Regular Session |
READ FIRST TIME 02/05/10.
AN ACT Relating to clarifying withdrawal of groundwater for stock watering purposes by a dairy farm; amending RCW 90.44.035 and 90.44.050; adding new sections to chapter 90.44 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that effective water
resource management and a stable livestock industry are vital to the
economic and environmental well-being of the state. The livestock
industry is an important part of our state's economy and an important
part of many communities in our state, and this industry should be
treated fairly as with all other sectors of the economy seeking an
assured water supply for its activities. The legislature further finds
that achievement of these goals is hindered by uncertainty surrounding
the exemption from water right permit requirements for withdrawals of
public groundwater for "stock watering purposes." Attorney general
opinion No. 17 from 2005 and the decision from the pollution control
hearings board in Dennis & DeVries v. Washington (PCHB No. 01-073
(2001)) are not in harmony. Therefore, in order to promote the clarity
needed for both a sustainable livestock industry and effective water
resource management, the legislature intends to provide dairy farms
with some certainty under the permit exemption.
Sec. 2 RCW 90.44.035 and 2000 c 98 s 2 are each amended to read
as follows:
((For purposes of this chapter:)) The definitions in this section
apply throughout this chapter unless the context clearly requires
otherwise.
(1) "Artificially stored groundwater" means water that is made
available in underground storage artificially, either intentionally, or
incidentally to irrigation and that otherwise would have been
dissipated by natural processes.
(2) "Dairy farm" means any farm that is licensed to produce milk
under chapter 15.36 RCW.
(3) "Department" means the department of ecology((;)).
(((2))) (4) "Director" means the director of ecology((;)).
(((3))) (5) "Groundwaters" means all waters that exist beneath the
land surface or beneath the bed of any stream, lake or reservoir, or
other body of surface water within the boundaries of this state,
whatever may be the geological formation or structure in which such
water stands or flows, percolates or otherwise moves. There is a
recognized distinction between natural groundwater and artificially
stored groundwater((;)).
(((4))) (6) "Natural groundwater" means water that exists in
underground storage owing wholly to natural processes((;)).
(((5) "Artificially stored groundwater" means water that is made
available in underground storage artificially, either intentionally, or
incidentally to irrigation and that otherwise would have been
dissipated by natural processes; and)) (7) "Underground artificial storage and recovery project"
means any project in which it is intended to artificially store water
in the ground through injection, surface spreading and infiltration, or
other department-approved method, and to make subsequent use of the
stored water. However, (a) this subsection does not apply to
irrigation return flow, or to operational and seepage losses that occur
during the irrigation of land, or to water that is artificially stored
due to the construction, operation, or maintenance of an irrigation
district project, or to projects involving water reclaimed in
accordance with chapter 90.46 RCW; and (b) RCW 90.44.130 applies to
those instances of claimed artificial recharge occurring due to the
construction, operation, or maintenance of an irrigation district
project or operational and seepage losses that occur during the
irrigation of land, as well as other forms of claimed artificial
recharge already existing at the time a groundwater subarea is
established.
(6)
Sec. 3 RCW 90.44.050 and 2003 c 307 s 1 are each amended to read
as follows:
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 any withdrawal of public
groundwaters for stock watering purposes except as provided in section
4 of this act, 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.
NEW SECTION. Sec. 4 A new section is added to chapter 90.44 RCW
to read as follows:
(1) Any existing withdrawal of water put to beneficial use for
stock watering purposes under RCW 90.44.050 by a dairy farm before the
effective date of this section that does not exceed 13.8 acre feet per
year is and remains exempt from the water right permit requirements of
this chapter.
(2) Any existing withdrawal of water put to beneficial use for
stock watering purposes under RCW 90.44.050 by a dairy farm before the
effective date of this section that does exceed 13.8 acre feet per year
is and remains exempt from the water right permit requirements of this
chapter if:
(a) By December 31, 2010, the dairy farm making the withdrawal
files a registration with the department to document the quantity and
priority of the withdrawal as provided in section 5 of this act;
(b) Water withdrawn under such a registration does not thereafter
exceed the annual quantity withdrawal limits contained in such a
registration; and
(c) By December 31, 2012, for existing dairy farms that, on or
before the effective date of this section, are 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 as determined
by the Washington department of fish and wildlife under RCW 90.03.360,
the dairy farm begins to meter its withdrawals, retains records of the
amounts withdrawn, and makes the records available to the department
upon request.
(3)(a) A dairy farm that existed on or before the effective date of
this section shall obtain a water right permit, certificate, or claim,
a department-approved transfer of an existing water right, or a
department-approved change or consolidation amendment as provided under
sections 5 and 6 of this act for any amount of water use exceeding the
registered annual quantity withdrawal limit contained in the
registration required in section 5 of this act.
(b) A dairy farm that existed on or before the effective date of
this section and had a withdrawal for stock watering purposes of less
than 13.8 acre feet per year prior to the effective date of this
section or a new dairy farm that begins operating after the effective
date of this section shall obtain a water right permit, certificate, or
claim, a department-approved transfer of an existing water right, or a
department-approved change or consolidation amendment as provided under
sections 5 and 6 of this act for any amount of water use exceeding 13.8
acre feet per year.
(4) Any new withdrawal of water put to beneficial use for stock
watering purposes under RCW 90.44.050 by a new dairy farm commenced
after the effective date of this section is and remains exempt from the
water right permit requirements of this chapter if the total withdrawal
for stock watering purposes by the dairy farm does not exceed 13.8 acre
feet per year, and annual withdrawal quantities are metered and
recorded and metering records are retained and made available to the
department upon request.
(5) 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 water
right or by the department which is authorized to use the authorities
of RCW 90.03.605 to pursue such an action.
NEW SECTION. Sec. 5 A new section is added to chapter 90.44 RCW
to read as follows:
(1)(a) A registration for a dairy farm that existed prior to the
effective date of this section that uses over 13.8 acre feet per year
for stock watering purposes must be on a form or electronic template
provided by the department and must include:
(i) The name and address of either the water user or the dairy
farm, or both;
(ii) The name and address of the owner of the land on which the
well, wells, or other means used for the withdrawal are located;
(iii) The legal description of the location of the point of
withdrawal and the place of use;
(iv) The depth, and any other pertinent specifications, of the
well, wells, or other means used for the withdrawal that may reasonably
be required by the department to determine the body of public
groundwater being withdrawn from;
(v) The date or approximate date, to the best of the registrant's
knowledge, of the first beneficial use of groundwater withdrawn;
(vi) A description of the stock watering purposes associated with
such a withdrawal and use; and
(vii) A declaration of the highest annual quantity, estimated to
the nearest acre foot, of water withdrawn and beneficially used by the
dairy farm for stock watering purposes during the period of January 1,
2005, through December 31, 2009.
(b) A registration under this section pertains to the quantity of
permit-exempt groundwater withdrawn and not to quantities of water use
authorized by an existing water right permit, certificate, or claim.
However, where a dairy farm depends upon a mixture of permit-exempt
withdrawals and other water rights authorized by a permit, certificate,
or claim, the identifying number of the water rights and claims and a
brief description of how they contribute to the daily water needs of
the dairy farm must also be included in the registration.
(c) The department may return registrations for modification as
needed, to correct ministerial errors, and to ensure that the
information, including but not limited to the annual quantity withdrawn
and the priority date, provided in the registration is accurate and
consistent.
(d) A registration may be amended if the dairy farm increases the
highest annual quantity, estimated to the nearest acre foot, of water
withdrawn and beneficially used by the dairy farm for stock watering
purposes from December 31, 2010, through December 31, 2015. The
amendment must be submitted on a form or electronic template provided
by the department.
(e) Causing a registration or an amendment to be filed with the
department constitutes the affirmation or acknowledgment under penalty
of perjury under the laws of the state of Washington that the
registration is true and complete to the best of the registrant's
knowledge.
(2) A dairy farm that, prior to the effective date of this section,
has relied upon permit-exempt withdrawals that exceeded 13.8 acre feet
per year for stock watering purposes, that fails to register by the
December 31, 2010, deadline has a priority date as of the date of
filing, except that a dairy farm retains their priority date if the
dairy farm applies to the department by December 31, 2010, for an
extension of time not to exceed December 31, 2012, that may be granted
only upon a showing of good cause.
(3) A dairy farm that, prior to the effective date of this section,
has relied upon permit-exempt withdrawals of 13.8 or fewer acre feet
per year is not required to register under this section. However, a
dairy farm may voluntarily register with the department at any time,
consistent with the provisions of this chapter.
NEW SECTION. Sec. 6 A new section is added to chapter 90.44 RCW
to read as follows:
A dairy farm that has registered under section 5 of this act may
submit a request in writing to the department that the department
undertake a review of the extent and validity of the water used for
stock watering purposes described in the registration submitted under
section 5 of this act. After such a review, dairy farms registered
under section 5 of this act may be approved by the department for
transfer and change or amendment to another place or purpose of use,
consistent with the requirements of RCW 90.44.100. The department may
also approve an expedited transfer and change or amendment to
accommodate the expansion or consolidation of registered dairy farms
consistent with section 7 of this act and RCW 90.44.100. For purposes
of RCW 90.44.100, the department shall treat such registered permit-exempt withdrawals for stock watering purposes as an appropriate permit
when considering an application for transfer and change or amendment.
NEW SECTION. Sec. 7 A new section is added to chapter 90.44 RCW
to read as follows:
(1) A dairy farm that has registered under section 5 of this act
may submit a request in writing to the department that the department
undertake a review of the extent and validity of the water used for
stock watering purposes described in the registration submitted under
section 5 of this act. After such a review, the department shall
expedite change and consolidation amendments under this section.
(2) Upon the issuance by the department of an amendment to the
appropriate permit-exempt groundwater right registrations, claims,
permits, or certificates of dairy farms registered under this chapter,
the holder of such a valid water right to withdraw public groundwaters
may use the expedited procedures provided under this section to change
or consolidate water rights with consenting owners of other dairy farms
registered under this chapter or water rights used for agricultural
purposes. Such an amendment does not affect the priority of any water
rights involved in the change or consolidation, and may be issued only
after a determination has been made by the department that all
applicable criteria established under subsections (3) through (7) of
this section have been satisfied.
(3) Any registered dairy farm that conserves water and reduces the
water withdrawal quantities required by the farm may:
(a) Increase either the dairy farm's numbers or types, or both, of
livestock without notice to the department as long as withdrawal
quantities authorized under registration with the department are not
exceeded; or
(b) Elect to protect the excess and unused portion of registered
withdrawal quantities from relinquishment by submitting the excess and
unused portion of the registered withdrawal quantities into the trust
water rights program under RCW 90.42.080.
(4) The department may approve the consolidation of two or more
registered stock water rights of dairy farms or a dairy farm and a
water right used for agricultural purposes to accommodate the expansion
or consolidation of dairy farms. A registered dairy farm may increase
water withdrawal associated with a consolidation of livestock to be
received from another registered dairy farm if the department first
approves the consolidation application in accordance with RCW
90.44.105. Prior to such a consolidation approval, the department
shall amend the registrations of the sending and receiving dairy farms
to appropriately reflect the corresponding reduction and increase of
water withdrawal quantities available.
(5) Applications for a change or consolidation amendment under this
section must:
(a) Use a change of water right application form provided by the
department;
(b) Provide registration or water right identification numbers for
the registered dairy farms proposing to receive conserved water under
subsection (2) of this section or proposing to receive livestock and
their associated water requirements under subsection (3) of this
section;
(c) Provide registration or water right identification numbers for
the registered dairy farm or the water right used for agricultural
purposes, if applicable, proposing to send water under subsection (2)
of this section or proposing to send livestock and their associated
water requirements under subsection (3) of this section;
(d) Provide the date or approximate date of the change or
consolidation, or the date of deposit in the trust water rights program
under chapter 90.38 or 90.42 RCW or a water bank established under RCW
90.38.040, 90.42.100, or 90.92.070; and
(e) Provide the proposed increase and corresponding decrease in the
amount of water to be withdrawn and beneficially used by each dairy
farm, in gallons per day, following the change of conserved water or
the consolidation and movement of animals, based on a prorated
operational share of water associated with animals moved.
(6) Prior to the department making a determination on an
application for a change or consolidation amendment under this section,
the applicant seeking the consolidation must publish notice of the
application in a newspaper of general circulation in the county or
counties in which the proposed withdrawal or withdrawals for the water
right or rights to be changed or consolidated are located once a week
for two consecutive weeks. Preparation of the notice must be
consistent with the provisions of RCW 90.03.280. The applicant shall
provide evidence of the publication of notice to the department. There
is a thirty-day comment period beginning on the date the second notice
is published.
(7) The department may only approve expedited change and
consolidation amendments under this section after:
(a) Conducting a tentative determination, based on the water
right's full history, of the extent and validity of any water right
registration, permit, certificate, or claim associated with a change or
consolidation amendment under this section;
(b) Determining that:
(i) The sending dairy farm or water right for agricultural purposes
and receiving dairy farm utilize withdrawals that tap the same body of
public groundwater unless the department determines that withdrawing
the water from a different body of public groundwater would improve the
overall sustainability of groundwater resources;
(ii) Any increase in water legally withdrawn by the receiving dairy
farm will be matched by an equal or greater reduction in water legally
withdrawn by the sending dairy farm;
(iii) Other existing water rights, including groundwater and
surface water rights and minimum stream flows adopted by rule, will not
be impaired as a result of the change or consolidation amendment; and
(iv) The proposed change or consolidation amendment will not be
detrimental to the public welfare; and
(c) Requiring that, if the withdrawals do tap different bodies of
public groundwater, the priority date be subordinated to existing
rights in order to protect existing water right holders from
impairment.
NEW SECTION. Sec. 8 The department of ecology shall convene a
dairy stock water advisory group that includes: Members representing
the dairy industry, members representing environmental interests; and
the director of the department of agriculture or the director's
designee. Affected federally recognized tribes shall be invited to
send participants. The group shall review issues surrounding the use
of permit-exempt wells for stock watering purposes by dairy farms under
this act and may develop recommendations for legislative action. The
group shall meet periodically and report its activities and
recommendations to the governor and the appropriate legislative
committees by December 1, 2013.
NEW SECTION. Sec. 9 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.