AN
ACT Relating to water transfers; and adding a new chapter to Title 90 RCW.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds:
(1)
Voluntary water transfers between water users can reallocate water use in a
manner that will result in more efficient use of water resources;
(2)
Voluntary water transfers can help alleviate water shortages, save capital
outlays, reduce development costs, and provide an incentive for investment in
water conservation efforts by water right holders; and
(3)
The state should expedite the administrative process for noncontested water
transfers among water right holders, conveying greater operational control to
water managers and water right holders.
NEW
SECTION. Sec. 2. The
following definitions apply throughout this chapter, unless the context clearly
requires otherwise.
(1)
"Board" means a water conservancy board created under this chapter.
(2)
"Commissioner" means a member of a water conservancy board.
(3)
"Department" means the department of ecology.
(4)
"Director" means the director of the department of ecology.
NEW
SECTION. Sec. 3. (1)
The county legislative authority of a county may create a water conservancy
board, subject to approval by the director, for the purpose of expediting
voluntary water transfers within the county.
(2)
A water conservancy board may be initiated by: (a) A resolution of the county
legislative authority; (b) a resolution presented to the county legislative
authority calling for the creation of a board by the legislative authority of
an irrigation district, public utility district that operates a public water
system, a reclamation district, a city operating a public water system, or a
water-sewer district that operates a public water system; (c) a resolution by
the governing body of a cooperative or mutual corporation that operates a
public water system serving one hundred or more accounts; (d) a petition signed
by five or more water rights holders, including their addresses, who divert
water for use within the county; or (e) any combination of (a) through (d) of
this subsection. The resolution or petition must state the need for the board,
include proposed bylaws or rules and procedures that will govern the operation
of the board, identify the geographic boundaries where there is an initial
interest in transacting water sales or transfers, and describe the proposed
method for funding the operation of the board.
(3)
After receiving a resolution or petition to create a board, a county
legislative authority shall determine its sufficiency. If the county
legislative authority finds that the resolution or petition is sufficient, or
if the county is initiating the creation of a board upon its own motion, it
shall hold at least one public hearing on the proposed creation of the board.
Notice of the hearing shall be published at least once in a newspaper of
general circulation in the county not less than ten days nor more than thirty
days before the date of the hearing. The notice shall describe the time, date,
place, and purpose of the hearing, as well as the purpose of the board.
Following the hearing, the county legislative authority may adopt a resolution
approving the creation of the board if it finds that the board's creation is in
the public interest.
NEW
SECTION. Sec. 4. (1)
The county legislative authority shall forward a copy of the resolution or
petition calling for the creation of the board, a copy of the resolution
approving the creation of the board, and a summary of the public testimony
presented at the public hearing to the director following the adoption of the
resolution calling for the board's creation.
(2)
The director shall approve or deny the creation of a board within forty-five
days after the county legislative authority has submitted all information required
under subsection (1) of this section. The director must determine whether the
creation of the board would further the purposes of this chapter and is in the
public interest. The director shall include a description of the necessary
training requirements for commissioners in the notice of approval sent to the
county legislative authority.
NEW
SECTION. Sec. 5. The
director of the department may, as deemed necessary by the director, adopt
rules in accordance with chapter 34.05 RCW necessary to carry out this chapter,
including minimum requirements for the training and continuing education of
commissioners. Training courses for commissioners shall include an overview of
state water law and hydrology. Prior to commissioners taking action on
proposed water right transfers, the commissioners shall comply with training
requirements that include state water law and hydrology.
NEW
SECTION. Sec. 6. A
water conservancy board constitutes a public body corporate and politic and a
separate unit of local government in the state. Each board shall consist of
three commissioners appointed by the county legislative authority for six-year
terms. The county legislative authority shall stagger the initial appointment
of commissioners so that the first commissioners who are appointed shall serve
terms of two, four, and six years, respectively, from the date of their
appointment. All vacancies shall be filled for the unexpired term. The county
legislative authority shall consider, but is not limited in appointing,
nominations to the board by people or entities petitioning or requesting the
creation of the board. However, the county legislative authority shall ensure
that individual water right holders who divert water for use within the county
are represented on the board. In making appointments to the board, the county
legislative authority shall choose from among persons who are residents of the
county or a county that is contiguous to the county that the water conservancy
board is to serve. No commissioner may participate in board decisions until he
or she has successfully completed the necessary training required under section
5 of this act. Commissioners shall serve without compensation, but are entitled
to reimbursement for necessary travel expenses in accordance with RCW 43.03.050
and 43.03.060 and costs incident to training.
NEW
SECTION. Sec. 7. (1) A
water conservancy board may acquire, purchase, hold, lease, manage, occupy, and
sell real and personal property or any interest therein, enter into and perform
all necessary contracts, appoint and employ necessary agents and employees and
fix their compensation, employ contractors including contracts for professional
services, sue and be sued, and do any and all lawful acts required and
expedient to carry out the purposes of this chapter.
(2)
A board constitutes an independently funded entity, and may provide for its own
funding as determined by the commissioners. The board may accept grants and
may adopt fees for processing applications for transfers of water rights to
fund the activities of the board. A board may not impose taxes or acquire property
by the exercise of eminent domain.
NEW
SECTION. Sec. 8. A
board shall operate on a county-wide basis, and shall have the following
powers, in addition to any others granted in this chapter:
(1)
A board may establish a water transfer exchange through which all or part of
the water that any person is entitled to use by reason of owning or holding a
water right may be listed for sale or transfer. The board may approve water
transfers involving a change in place of use, point of diversion or withdrawal,
purpose of use, time of use, source of supply, quantity of use permitted, and
the place of storage. Any water transfer approved by the board is subject to
final approval by the director pursuant to section 11 of this act.
(2)
The board may approve the transfer of a water right or a water right claim
filed under chapter 90.14 RCW that has not been adjudicated. The board shall
make a tentative determination as to the validity and extent of the existing
right, and may only approve transfers of those rights to the extent they are
deemed valid by the board. Neither the board's approval of a transfer, nor the
director's approval of the board's action constitutes an adjudication of the
validity, priority, or quantity of the transferor's water right as between the
transferor or the transferee and the state, or as between the transferor or the
transferee and one or more water use claimants, and such approvals do not
preclude or prejudice a subsequent challenge to the validity, priority, or
quantity of the right in an adjudicatory proceeding. The tentative
determination of a water right by a board does not preclude a different
conclusion in a subsequent adjudication.
(3)
Water transfers approved by the board must remain within an existing category
of beneficial use, and a transfer of water that is being used for agricultural
applications is restricted to short-term or long-term leases.
(4)
Each board shall maintain and publish all information made available to it
concerning water rights listed with the board and any application to the board
for approval of a water transfer. Each board shall establish policies and
procedures, consistent with applicable law, for the administration of a system
of timely local approvals for water transfers under this chapter. The
administration shall be performed exclusively by the board, but the department
may provide technical assistance to the board.
NEW
SECTION. Sec. 9. (1)
Applications to the board for transfers shall be made on a form provided by the
department, and shall contain such additional information as may be required by
the board in order to review and act upon the application. At a minimum, the
application shall include information sufficient to establish to the board's
satisfaction of the transferor's right to the quantity of water being
transferred, and a description of any applicable limitations on the right to
use water, including the point of diversion or withdrawal, place of use, source
of supply, purpose of use, quantity of use permitted, time of use, period of
use, and the place of storage.
(2)
The transferor and the transferee of any proposed water transfer may apply to a
board for approval of the transfer if the water proposed to be transferred is
currently diverted or used within the geographic boundaries of the county, or
would be diverted or used within the geographic boundaries of the county if the
transfer is approved. In the case of a proposed water transfer in which the
water is currently diverted or would be diverted outside the geographic
boundaries of the county, the board shall hold a public hearing in the county
of the diversion or proposed diversion. The board shall provide for prominent
publication of notice of such hearing in a newspaper of general circulation
published in the county in which the hearing is to be held for the purpose of
affording an opportunity for interested persons to comment upon the
application.
(3)
After an application for a transfer is filed with the board, the board shall
publish notice of the application in accordance with the publication
requirements and send notice to state agencies as provided in RCW 90.03.280.
Any person may submit comments to the board regarding the application. Any
water right holder claiming detriment or injury to an existing water right may
intervene in the application before the board pursuant to subsection (4) of
this section. If a majority of the board determines that the application is
complete, in accordance with the law and the transfer can be made without
injury or detriment to existing water rights in accordance with RCW 90.03.380,
the board shall issue the applicant a certificate conditionally approving the
transfer, subject to review by the director.
(4)
If a water right holder claims a proposed transfer will cause an impairment to
that right, the water right holder is entitled to a hearing before the board.
The board shall receive such evidence as it deems material and necessary to
determine the validity of the claim of impairment. If the party claiming the
impairment establishes by a preponderance of the evidence that his or her water
right will be impaired by the proposed transfer, the board may not approve the
transfer unless the applicant and the impaired party agree upon compensation
for the impairment.
NEW
SECTION. Sec. 10. (1)
If an application for a transfer is proposed to transfer water from one
irrigation district to another, approval of the transfer shall be conditioned
upon receipt of the concurrence from each of the irrigation districts that the
transfer will not adversely affect the ability to deliver water to other
landowners or impair the financial integrity of either of the districts.
(2)
A transfer involving a change in place or use or a nonconsumptive use by an
individual water user or users of water provided by an irrigation district need
only receive the approval for the transfer from the board of directors of the
irrigation district if the water continues within the irrigation district.
NEW
SECTION. Sec. 11. (1)
If a transfer is approved by the board, the board shall submit a copy of the
proposed certificate conditionally approving the transfer to the department for
review. The board shall also submit a report summarizing any factual findings
on which the board relied in deciding to approve the proposed transfer. The
board shall also transmit notice by mail to any person who objected to the
transfer or who requested notice.
(2)
The director shall review each proposed transfer conditionally approved by a board
for compliance with state water transfer laws including RCW 90.03.380,
90.03.390, and 90.44.100, rules and guidelines adopted by the department, and
other applicable law.
(3)
Any party to a transfer or a third party who alleges his or her water right
will be impaired by the proposed transfer may file objections with the
department. If objections to the transfer are filed with the department, the
board shall forward the files and records upon which it based its decision to
the department.
(4)
The director shall review the action of the board and affirm, reverse, or
modify the action of the board within forty-five days of receipt. The
forty-five day time period may be extended for an additional thirty days by the
director, upon the consent of the parties to the transfer. If the director
fails to act within this time period, the board's action is final. Upon
approval of a water transfer by the action or nonaction of the director, the
conditional certificate issued by the board is final and valid.
NEW
SECTION. Sec. 12. The
decision of the director to approve an action to create a board, or to approve,
deny, or modify a water transfer either by action or nonaction shall be
appealable in the same manner as other water right decisions made pursuant to
chapter 90.03 RCW.
NEW
SECTION. Sec. 13.
Neither the county nor the department shall be subject to any cause of action
or claim for damages arising out of transfers approved by a board under this chapter.
NEW
SECTION. Sec. 14. A
person who, in good faith and without intent of circumventing water right
relinquishment statutes, leases a water right under this chapter may not lose
any portion of that water right by relinquishment due to the nonuse of the
water by the lessee.
NEW
SECTION. Sec. 15.
Nothing in this chapter eliminates or lessens the requirements necessary for
the approval of interties.
NEW
SECTION. Sec. 16. (1) A
commissioner of a water conservancy board who has an ownership interest in a
water right subject to an application for approval of a transfer or change by
the board, shall not participate in the board's review or decision upon the
application.
(2)
A commissioner of a water conservancy board who also serves as an employee or
upon the governing body of a municipally owned water system, shall not
participate in the board's review or decision upon an application for the
transfer or change of a water right in which that water system has or is
proposed to have an ownership interest.
NEW
SECTION. Sec. 17. Water
conservancy board activities are subject to the open public meetings act,
chapter 42.30 RCW.
NEW
SECTION. Sec. 18.
Nothing in this chapter affects transfers that may be otherwise approved under
chapter 90.03 RCW.
NEW
SECTION. Sec. 19. The
department shall report biennially by December 31st of each even-numbered year
to the appropriate committees of the legislature on the boards formed or sought
to be formed under the authority of this chapter, the transfer applications
reviewed and other activities conducted by the boards, and the funding of such
boards.
NEW
SECTION. Sec. 20. 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.
NEW SECTION. Sec. 21.
Sections 1 through 19 of this act constitute a new chapter in Title 90 RCW.
