1113-S.E AAS 4/17/97

ESHB 1113 - S AMD - 432

By Senators Swecker and Morton

                                        ADOPTED AS AMENDED 4/17/97

    Strike everything after the enacting clause and insert the following:

    "NEW SECTION. Sec. 1.  The legislature finds that incentives need to be established to encourage the installation of more efficient irrigation conveyance and on-farm application systems and that significant benefits can accrue including water quantity and water quality benefits.  The legislature finds that increasing the amount of lands that may be irrigated under an existing water right can impact the amount of return flow water available to meet the needs of other existing water rights.  Further, that adherence to a strict nonimpairment standard has slowed efforts to make irrigation water delivery systems more efficient.  The legislature finds that reliance on public funds to provide incentives to install efficient irrigation systems is less reliable and more costly to the public than providing economic incentives together with establishing compensating mechanisms to protect existing rights from impairment.

    The purpose of this act is to establish mechanisms that will provide a means to test incentives for improving the efficiency of irrigation water use.

NEW SECTION. Sec. 2.  A new section is added to chapter 90.03 RCW to read as follows:

    RCW 90.03.380 does not apply to a change regarding a portion of the water governed by a water right to appropriate surface water used for agricultural purposes that is made surplus to the beneficial uses exercised under the right through the implementation of practices or technologies, including but not limited to conveyance practices or technologies that are more efficient or more water use efficient than those under which the right was perfected or through a change in the crops grown under the water right.  If a portion of the water governed by a water right to surface water is made surplus to the beneficial uses exercised under the right through the implementation of practices or technologies, including but not limited to conveyance practices or technologies, which are more efficient or more water use efficient than those under which the right was perfected, the right to use the surplus water may be changed to use on other lands owned by the holder of the water right that are contiguous to the lands upon which the use of the water was authorized by the right before such a change in accordance with the following:

    (1) For the purpose of calculating the amount of surplus water that may be allocated to irrigate additional lands, the water right holder shall assume that the amount of water per acre that is to be used to irrigate the additional land is equal to the revised amount of water per acre that the lands previously allowed to be irrigated under the original right would receive.  Once the amount of surplus water is calculated in accordance with this section, the allowable quantity of water that may be used to irrigate each parcel may be used on either the original parcel or on the additional land without differentiation;

    (2) Of the waters determined to be surplus to the beneficial uses exercised under the right:

    (a) Fifty percent shall be available to be used on additional land and shall retain the date of priority of the original right; and

    (b) Fifty percent shall be available to be used on additional land and shall have a date of priority that is subordinate to other water rights that were established as of the date the water was applied to the additional land.

    The holder of the water right shall notify the department of such a change.  The department may prescribe a form upon which notification is to be made.  The department shall establish procedures to verify the information contained in the notification and may require the submission of additional information to assure general compliance with the provisions of this section.  Such notification constitutes a change in the holder's water right and, upon receiving the notification, the department shall revise its records for the water right to reflect the change.

    This section does not apply to water supplied by an irrigation district.

    This section does not apply to surplus water resulting from water efficiency improvements that were financed in whole or in part with state funds.

    Any person who uses this section shall not impair any existing right unless compensation or mitigation for such impairment or injury is agreed to by the holder of the affected water right.

NEW SECTION. Sec. 3.  The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

    (1) "Contract" means a written legal instrument that provides for the transfer of a portion of a water right from an existing water right holder to another person for consideration.

    (2) "Department" means the department of ecology.

    (3) "Net water savings" has the same meaning as defined in RCW 90.42.020.

    (4) "Person" means a person, corporation, quasi-municipal corporation, municipal corporation, or state agency.

    (5) "Reduction in evaporative loss" means the amount of water that is no longer lost to further use as a result of changing from a conventional irrigation system to a water-efficient irrigation system.  "Reduction in evaporative loss" includes the reduction in the amount of water consumed through evaporation or through transpiration by nonproductive plants such as cover crops, but does not include any water that contributed to return flows used to satisfy existing rights.

    (6) "Trust water right" means a water right transferred to and managed by the department for the benefit of instream flows or for the allocation to new uses as provided in chapter 90.38 or 90.42 RCW.

    (7) "Water-efficient irrigation system" means a system that, through technological modifications, results in water savings.

NEW SECTION. Sec. 4.  A person holding a valid water right or contractual right to use water, who finances the installation of a water-efficient irrigation system, may enter into a contract with another person for the transfer of water saved through installation of the water-efficient irrigation system.  In determining the amount that is transferrable, the department shall allow the transfer of an amount equal to the reduction in the evaporative loss.  The reduction in evaporative loss is a readily transferrable component of net water savings.

    In addition, the department shall evaluate whether there are additional net water savings that result directly from installation of the water-efficient irrigation system that could be transferred to the purchaser without detriment to other existing water users.  The department may not delay because of decisions on the determination of additional net water savings the approval of the transfer of the water that constitutes the reduction in evaporative loss.  The use of water supplied by an irrigation district that is saved through installation of a qualifying water-efficient irrigation system as provided in this section shall be regulated solely as provided by the board of directors of the irrigation district.

    A person wishing to make application for a transfer of a water right under this chapter shall comply with RCW 90.03.380.  A contract may allow for a permanent transfer of a portion of the original water right, or for lease agreements with set expiration dates.  The applicant shall state that the contract is not permanent in the application if the contract is not permanent.

    The transferred portion has the same date of priority as the water right from which it originated, but between them the transferred portion of the right is inferior in priority unless otherwise provided by the parties in the contract.

    The department shall maintain a record of contracts with the certificate of water right for the transferred water.

NEW SECTION. Sec. 5.  The department may adopt rules, in accordance with chapter 34.05 RCW, for procedures to be used to facilitate the processing of requests for water right transfers made under this chapter and to establish a streamlined procedure to quantify the reduction in the evaporative loss.  In developing streamlined procedures, the department may use data from the United States natural resource conservation service or the Washington state cooperative extension service to base calculations of reduction in evaporative loss in various regions of the state.

    The rules may establish procedures for the department to make preliminary findings that can be used as an initial basis for developing contracts by applicants.

NEW SECTION. Sec. 6.  An applicant shall accompany an application for a water right transfer under this chapter with a fee established in RCW 90.03.470.

NEW SECTION. Sec. 7.  In processing applications for transfers of portions of water rights under this chapter, if the department is unable to conclusively determine the validity of the original water right, the department may include a presumption of validity in the certificate of water rights.  The presumption must provide to the contract purchaser the same right to the use of water embodied in the original water right.

    The presumption of validity may not be used as evidence as to the existence or nonexistence in a water right adjudication conducted under chapter 90.03 RCW.

NEW SECTION. Sec. 8.  A holder of a water right may voluntarily enter into a contract with the department.  The department may utilize funds that are now or hereafter authorized for the purchase of water savings made available under this chapter.  The department shall utilize the same methods of calculating water that is transferrable to another party under this chapter in determining the amount of water that is transferrable to the state.  If additional net water saved is available for the benefit of only a stream segment, the calculations may be made on a case-by-case basis while assuring no detriment to existing water users occurs.

NEW SECTION. Sec. 9.  A valid water right user who installs a water-efficient irrigation system may apply for a transfer of the reduction in evaporative loss, plus any additional net water savings, for the irrigation of an additional parcel of previously unirrigated land, to land with less senior water rights, or that lacks a full and sufficient supply.  The application must be processed based upon the same criteria as if the transfer were to be made to another person.

NEW SECTION. Sec. 10.  This chapter may be known and cited as the agricultural water conservation incentives act.

    Sec. 11.  RCW 90.03.380 and 1996 c 320 s 19 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 said)).  However, all or a portion of a 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 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 said application shall not be granted until notice of said application shall be 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 an authorization to make the change or transfer.  When the applicant has completed the change or transfer, 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.  The board of directors of an irrigation district may approve such a change if the board determines that the change:  Will not adversely affect the district's ability to deliver water to other landowners; will not require the construction by the district of diversion or drainage facilities unless the board finds that the construction by the district is in the interest of the district; will not impair the financial or operational integrity of the district; and is consistent with the contractual obligations of the district.

(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.

    Sec. 12.  RCW 90.44.100 and 1987 c 109 s 113 are each amended to read as follows:

    After an application to, and upon the issuance by the department of an amendment to the appropriate permit or certificate of ground water right, the holder of a valid right to withdraw public ground waters may, without losing his priority of right, construct wells or other means of withdrawal at a new location in substitution for or in addition to those at the original location, or he may change the manner or the place of use of the water:  PROVIDED, HOWEVER, That such amendment shall be issued only after publication of notice of the application and findings as prescribed in the case of an original application.  Such amendment shall be issued by the department only on the conditions that:  (1) The additional or substitute well or wells shall tap the same body of public ground water as the original well or wells; (2) use of the original well or wells shall be discontinued upon construction of the substitute well or wells; (3) the construction of an additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and (4) other existing rights shall not be impaired.  The department may specify an approved manner of construction and shall require a showing of compliance with the terms of the amendment, as provided in RCW 90.44.080 in the case of an original permit.  An amendment to a permit or certificate to change the place of use, point of withdrawal, and/or purpose of use of a ground water right to enable irrigation of additional acreage or the addition of new uses may be issued if such change results in no increase in the annual consumptive quantity of water used under a certificate or authorized for use under a permit.  For purposes of this section, "annual consumptive quantity" means the estimated or actual annual amount of water withdrawn under a certificate or the amount authorized for use under a permit reduced by the estimated annual amount of return flows.  For permits or certificates under which actual amounts of water have been withdrawn, withdrawals and return flows shall be averaged over the most recent five-year period of continuous beneficial use of the ground water right or, if the period of actual continuous beneficial use is less than five years, such lesser period.

NEW SECTION. Sec. 13.  The department of ecology shall submit a report to the legislature by December 1, 2000, containing the results of activities authorized under this act.

NEW SECTION. Sec. 14.  Sections 3 through 10 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 15.  Sections 1 through 10 of this act expire June 30, 2001."

ESHB 1113 - S AMD - 432

By Senators Swecker and Morton

                                        ADOPTED AS AMENDED 4/17/97

    On page 1, line 1 of the title, after "changes;" strike the remainder of the title and insert "amending RCW 90.03.380 and 90.44.100; adding a new section to chapter 90.03 RCW; adding a new chapter to Title 90 RCW; creating new sections; and providing an expiration date."

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