AN
ACT Relating to determining the impairment of water rights and uses; amending
RCW 90.03.380, 90.44.100, 90.44.030, 90.44.035, and 90.44.070; adding a new
section to chapter 90.44 RCW; adding a new section to chapter 90.03 RCW; and
creating a new section.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. 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 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. 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 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)
Any right represented by an application for a water right for which a permit
for water use has not been issued by the time a transfer or change is approved
under this section shall not be construed as being injured or detrimentally
affected by the transfer or change.
(5)
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.
2. 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.
Any
right represented by an application for a water right for which a permit for
water use has not been issued by the time an amendment is approved under this
section shall not be construed as being impaired by the amendment.
Sec.
3. RCW
90.44.030 and 1945 c 263 s 2 are each amended to read as follows:
(1)
The rights to appropriate the surface waters of the state and the rights
acquired by the appropriation and use of surface waters shall not be affected
or impaired by any of the provisions of this supplementary chapter and, to the
extent that any underground water is part of or tributary to the source of any
surface stream or lake, or that the withdrawal of ground water may affect the
flow of any spring, water course, lake, or other body of surface water, the
right of an appropriation and owner of surface water shall be superior to any
subsequent right hereby authorized to be acquired in or to ground water.
(2)
Rights acquired by appropriation of surface waters are affected or impaired by
a ground water withdrawal from a confined aquifer only if:
(a)
Withdrawal of ground water causes a measurable head reduction within fifty feet
of the surface water body in question in the shallowest unconfined water table
aquifer that underlies that surface water body; or
(b)
Withdrawal of ground water will cause a measurable reduction in the flow or
level of the surface water body.
(3)
If any of the conditions in subsection (2) of this section occur, then
withdrawal of ground water affects or impairs existing surface water rights,
including instream flow appropriations adopted by regulation, that are not
being satisfied during the period of the occurrence.
NEW
SECTION. Sec. 4. A
new section is added to chapter 90.44 RCW to read as follows:
In
addition to RCW 90.44.030(1), rights acquired by appropriation of surface waters
are affected or impaired by a ground water withdrawal from an unconfined
aquifer only if after no more than six months pumping, the surface water will
lie within the cone of depression of a well tapping an unconfined aquifer.
Sec.
5. RCW
90.44.035 and 1987 c 109 s 107 are each amended to read as follows:
For
purposes of this chapter:
(1)
"Department" means the department of ecology;
(2)
"Director" means the director of ecology;
(3)
"Ground waters" 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 ground
water and artificially stored ground water;
(4)
"Natural ground water" means water that exists in underground storage
owing wholly to natural processes; ((and))
(5)
"Artificially stored ground water" 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 waste;
(6)
"Confined aquifer" means an aquifer in which ground water is under
sufficient hydrostatic head to rise above the bottom of the overlying confining
bed;
(7)
"Confining bed" means a layer of low permeability material
immediately overlying a confined aquifer; and
(8)
"Measurable" means capable of being measured in the field with the
use of equipment normally used by professionals for the measurement in question.
Sec.
6. RCW
90.44.070 and 1987 c 109 s 110 are each amended to read as follows:
(1)
No permit shall be granted for the development or withdrawal of public ground
waters beyond the capacity of the underground bed or formation in the given
basin, district, or locality to yield such water within a reasonable or
feasible pumping lift in case of pumping developments, or within a reasonable
or feasible reduction of pressure in the case of artesian developments. The
department shall have the power to determine whether the granting of any such
permit will injure or damage any vested or existing right or rights under prior
permits and may in addition to the records of the department, require further
evidence, proof, and testimony before granting or denying any such permits.
(2)
No permit for the development or withdrawal of public ground waters from a
confined aquifer may be denied or conditioned due to injury to, impairment of,
or conflict with an existing surface water right unless the ground water
withdrawal in question will impair the surface water right pursuant to RCW 90.44.030(2):
PROVIDED, That this section does not affect the ability of the department to
limit or restrict future ground water appropriations by adopting rules after
following the procedures of RCW 90.44.180 or 90.44.400 through 90.44.420 or
chapter 90.54 RCW.
(3)
The department may grant a ground water permit for a withdrawal that will
impair a surface water right if the applicant has proposed a satisfactory plan
for mitigating the impairment. Mitigation may include, but is not limited to:
Reduction in pumping rates, limitation of pumping to times that will not lead
to impairment, increased recharge of the ground water, and augmentation of
stream flows either through release of stored water or the import of water from
out of the basin.
NEW
SECTION. Sec. 7. A
new section is added to chapter 90.03 RCW to read as follows:
(1)
The existence of hydraulic continuity between ground water and a surface body
of water does not, in itself, constitute the impairment of an existing water right
in the surface water body by a proposed permit for a ground water right or an
amendment to a ground water right.
(2)
In making a determination as to whether an application to appropriate public
water will impair existing rights the department shall take into consideration:
(a)
The availability of water and the effect of granting a water right permit,
transfer, change, or amendment are those that exist with the incorporation of
the effects of any offset to be provided by the applicant under RCW 90.03.255
or 90.44.055 or any other water supply augmentation or mitigation to be
provided by the applicant as part of his or her application for a water right
permit, transfer, change, or amendment;
(b)
Seasonal variations in water supply and in the recharge of surface and ground
water bodies; and
(c)
The provisions of RCW 90.44.030.
(3)
The standards governing impairment of existing surface water rights by
applications to appropriate public ground water in RCW 90.44.030(2), this
subsection, and RCW 90.44.070(2) apply only to the determinations to be made by
the department in ruling upon such applications, and reflect the uncertainties
inherent in making tentative determinations regarding future impacts of
withdrawing ground water. Any person claiming that a senior water right is
injured by one or more junior water rights may file an action to enjoin the
junior water rights in the superior court of the county where the claimed
senior water right is located. The superior court shall hear such action de
novo, and if it finds by a preponderance of the evidence that one or more
junior water rights is causing or contributing to the injury of a senior water
right, the court may enjoin use of the junior water rights in reverse order of
priority in the manner it deems necessary to protect the senior water right.
This section does not apply where the claimed senior water right consists of a
minimum flow or level or the closure of a surface water body.
NEW SECTION. Sec. 8. Any
person whose application to appropriate public ground water was denied by the
department of ecology between November 1, 1995, and the effective date of this
section, when one of the grounds for denial was that the proposed ground water
withdrawal would impair, or conflict with, surface water closures or surface
water rights including minimum flows, may have his or her application
reconsidered in accordance with this section. Any such person desiring
reconsideration shall resubmit his or her application to the department of
ecology within thirty days of the effective date of this section. The
department of ecology shall accord any such resubmitted application its
original priority date and shall reconsider the application on a priority
basis, applying the standards of this act. The decision of the department of
ecology may be appealed in the manner provided by law for appeals of decisions
on applications to appropriate public water.
