State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/16/11.
AN ACT Relating to interbasin transfers of water rights; amending RCW 90.03.380 and 90.03.380; creating a new section; providing an effective date; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that because it is
increasingly difficult for water users to acquire new water rights,
transfers are a valuable and necessary water management tool. The
legislature further finds that interbasin water right transfers may
impact the economic and social welfare of rural communities.
Therefore, the legislature intends for the department of ecology to
provide notice electronically of a proposed interbasin water rights
transfer to the board of commissioners in the county of origin before
issuing a change authorization.
Sec. 2 RCW 90.03.380 and 2009 c 183 s 15 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
banked under RCW 90.92.070, in an approved local water plan created
under RCW 90.92.090, or the water right was subject to an agreement to
not divert under RCW 90.92.050 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 RCW 90.92.090, a water right
that is subject to an agreement not to divert under RCW 90.92.050, or
a banked water right under RCW 90.92.070.
(10)(a) The department may only approve an application submitted
after the effective date of this section for an interbasin water rights
transfer after providing notice electronically to the board of county
commissioners in the county of origin upon receipt of an application.
(b) For the purposes of this subsection:
(i) "Interbasin water rights transfer" means a transfer of a water
right for which the proposed point of diversion is in a different basin
than the proposed place of beneficial use.
(ii) "County of origin" means the county from which a water right
is transferred or proposed to be transferred.
(c) This subsection applies to counties located east of the crest
of the Cascade mountains.
Sec. 3 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.
(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)(a) The department may only approve an application submitted
after the effective date of this section for an interbasin water rights
transfer after providing notice electronically to the board of county
commissioners in the county of origin upon receipt of an application.
(b) For the purposes of this subsection:
(i) "Interbasin water rights transfer" means a transfer of a water
right for which the proposed point of diversion is in a different basin
than the proposed place of beneficial use.
(ii) "County of origin" means the county from which a water right
is transferred or proposed to be transferred.
(c) This subsection applies to counties located east of the crest
of the Cascade mountains.
NEW SECTION. Sec. 4 Section 2 of this act expires June 30, 2019.
NEW SECTION. Sec. 5 Section 3 of this act takes effect June 30,
2019.