2994-S

2994-S.E AAS 3/3/00

ESHB 2994 - S AMD - 240

By Senators Fraser and Honeyford

ADOPTED 3/3/00

Strike everything after the enacting clause and insert the following:

"Sec 1. RCW 90.14.200 and 1989 c 175 s 180 are each amended to read as follows:

(1) All matters relating to the implementation and enforcement of this chapter by the department of ecology shall be carried out in accordance with chapter 34.05 RCW, the Administrative Procedure Act, except where the provisions of this chapter expressly conflict with chapter 34.05 RCW. Proceedings held pursuant to RCW 90.14.130 are adjudicative proceedings within the meaning of chapter 34.05 RCW. Final decisions of the department of ecology in these proceedings are subject to review in accordance with chapter 43.21B RCW.

(2) RCW 90.14.130 provides nonexclusive procedures for determining a relinquishment of water rights under RCW 90.14.160, 90.14.170, and 90.14.180. RCW 90.14.160, 90.14.170, and 90.14.180 may be applied in, among other proceedings, general adjudication proceedings initiated under RCW 90.03.110 or 90.44.220: PROVIDED, That nothing herein shall apply to litigation involving determinations of the department of ecology under RCW 90.03.290 relating to the impairment of existing rights.

(3) The provisions of RCW 90.14.130 through 90.14.180 shall not be construed to curtail the powers of the superior court, under a recognized head of equitable jurisdiction, to set aside or cancel relinquishment at the motion of a party claiming a water right that is subject to a general adjudication of water rights initiated by the department under RCW 90.03.110 or 90.44.220.

Sec. 2. RCW 90.38.020 and 1989 c 429 s 3 are each amended to read as follows:

(1) The department may acquire water rights, including but not limited to storage rights, by purchase, gift, or other appropriate means other than by condemnation, from any person or entity or combination of persons or entities. Once acquired, such rights are trust water rights.

(2) The department may make such other arrangements, including entry into contracts with other persons or entities as appropriate to ensure that trust water rights acquired in accordance with this chapter can be exercised to the fullest possible extent.

(3) The trust water rights may be acquired on a temporary or permanent basis.

(4) The trust water rights may be expressly conditioned by the grantor for instream use.

Sec. 3. RCW 90.42.005 and 1991 c 347 s 1 are each amended to read as follows:

(1) It is the policy of the state of Washington to recognize and preserve water rights in accordance with RCW 90.03.010.

(2) The legislature finds that:

(a) The state of Washington is faced with a shortage of water with which to meet existing and future needs, including the needs of aquatic species listed as threatened or endangered under the federal endangered species act, particularly during the summer and fall months and in dry years when the demand is greatest;

(b) Consistent with RCW 90.54.180, conservation and water use efficiency programs, including storage, and voluntary water programs, such as water banking, should be the preferred methods of addressing water uses because they can relieve current critical water situations, provide for presently unmet needs, and assist in meeting future water needs. Presently unmet needs or current needs includes the water required to increase the frequency of occurrence of base or minimum flow levels in streams of the state, the water necessary to satisfy existing water rights, or the water necessary to provide full supplies to existing water systems with current supply deficiencies; and

(c) The interests of the state will be served by developing programs and regional water resource plans, in cooperation with local governments, federally recognized tribal governments, appropriate federal agencies, private citizens, and the various water users and water interests in the state, that increase the overall ability to manage the state's waters in order to resolve conflicts and to better satisfy both present and future needs for water.

Sec. 4. RCW 90.42.010 and 1998 c 245 s 173 are each amended to read as follows:

The legislature finds that a need exists to continue to develop and test ((a)) all feasible means to facilitate the voluntary transfer of water and water rights, including conserved water, to provide water for presently unmet needs and emerging needs. Further, the legislature finds that water conservation activities and voluntary water programs have the potential of affecting the quantity of return flow waters to which existing water right holders have a right to and rely upon. It is the intent of the legislature that persons holding rights to water, including return flows, not be adversely affected in the implementation of the provisions of this chapter.

Sec. 5. RCW 90.42.020 and 1991 c 347 s 6 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

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

(2) "Net water savings" means the amount of water that is determined to be conserved and usable within a specified stream reach or reaches for other purposes without impairment or detriment to water rights existing at the time that a water conservation project is undertaken, reducing the ability to deliver water, or reducing the supply of water that otherwise would have been available to other existing water uses.

(3) "Trust water right" means any water right acquired by the state under this chapter for management in the state's trust water rights program.

(4) ((~~"Pilot planning areas" means the geographic areas designated under RCW 90.54.045(2).~~

~~(5)~~)) "Water conservation project" means any project or program that achieves physical or operational improvements that provide for increased water use efficiency in existing systems of diversion, conveyance, application, or use of water under water rights existing on July 28, 1991.

Sec. 6. RCW 90.42.030 and 1993 c 98 s 2 are each amended to read as follows:

(1) For purposes of this chapter, the state may enter into contracts to provide moneys to assist in the financing of water conservation projects. In consideration for the financial assistance provided, the state shall obtain public benefits defined in guidelines developed under RCW 90.42.050.

(2) If the public benefits to be obtained require conveyance or modification of a water right, the recipient of funds shall convey to the state the recipient's interest in that part of the water right or claim constituting all or a portion of the resulting net water savings for deposit in the trust water rights program. The amount to be conveyed shall be finitely determined by the parties, in accordance with the guidelines developed under RCW 90.42.050, before the expenditure of state funds. Conveyance may consist of complete transfer, lease contracts, or other legally binding agreements. When negotiating for the acquisition of conserved water or net water savings, or a portion thereof, the state may require evidence of a valid water right.

(3) As part of the contract, the water right holder and the state shall specify the process to determine the amount of water the water right holder would continue to be entitled to once the water conservation project is in place.

(4) The state shall cooperate fully with the United States in the implementation of this chapter. Trust water rights may be acquired through expenditure of funds provided by the United States and shall be treated in the same manner as trust water rights resulting from the expenditure of state funds.

(5) If water is proposed to be acquired by or conveyed to the state as a trust water right by an irrigation district, evidence of the district's authority to represent the water right holders shall be submitted to and for the satisfaction of the department.

(6) The state shall not contract with any person to acquire a water right served by an irrigation district without the approval of the board of directors of the irrigation district. Disapproval by a board shall be factually based on probable adverse effects on the ability of the district to deliver water to other members or on maintenance of the financial integrity of the district.

(7) RCW 90.03.380 has no applicability to trust water rights acquired by the state under this section through the funding of water conservation projects.

Sec. 7. RCW 90.42.040 and 1993 c 98 s 3 are each amended to read as follows:

(1) All trust water rights acquired by the state shall be placed in the state trust water rights program to be managed by the department. Trust water rights acquired by the state shall be held or authorized for use by the department for instream flows, irrigation, municipal, or other beneficial uses consistent with applicable ((~~regional plans for pilot planning areas,~~)) watershed plans under chapter 90.82 RCW or to resolve critical water supply problems, including implementation of state and local plans and programs for recovery of aquatic species listed as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.).

(2) The department shall issue a water right certificate in the name of the state of Washington for each permanent trust water right conveyed to the state indicating the reach or reaches of the stream, the quantity, and the use or uses to which it may be applied. A superseding certificate shall be issued that specifies the amount of water the water right holder would continue to be entitled to as a result of the water conservation project. The superseding certificate shall retain the same priority date as the original right. For nonpermanent conveyances, the department shall issue certificates or such other instruments as are necessary to reflect the changes in purpose or place of use or point of diversion or withdrawal. Water rights for which such nonpermanent conveyances are arranged shall not be subject to relinquishment for nonuse.

(3) A trust water right retains the same priority date as the water right from which it originated, but as between them the trust right shall be deemed to be inferior in priority unless otherwise specified by an agreement between the state and the party holding the original right.

(4) Exercise of a trust water right may be authorized only if the department first determines that neither water rights existing at the time the trust water right is established, nor the public interest will be impaired. If impairment becomes apparent during the time a trust water right is being exercised, the department shall cease or modify the use of the trust water right to eliminate the impairment.

(5) Before any trust water right is created or modified, the department shall, at a minimum, require that a notice be published in a newspaper of general circulation published in the county or counties in which the storage, diversion, and use are to be made, and in other newspapers as the department determines is necessary, once a week for two consecutive weeks. At the same time the department shall send a notice containing pertinent information to all appropriate state agencies, potentially affected local governments and federally recognized tribal governments, and other interested parties, and shall post the notice on its web page.

(6) RCW 90.14.140 through 90.14.230 have no applicability to trust water rights held by the department under this chapter or exercised under this section.

((~~(7) RCW 90.03.380 has no applicability to trust water rights acquired by the state through the funding of water conservation projects.~~))

Sec. 8. RCW 90.42.050 and 1991 c 347 s 9 are each amended to read as follows:

The department, in cooperation with federally recognized Indian tribes, local governments, state agencies, and other interested parties, shall establish guidelines ((~~by July 1, 1992,~~)) governing the acquisition, administration, and management of trust water rights. For purposes of subsection 6 of this section, the department shall consult with any appropriate federal agencies. The guidelines shall address at a minimum the following:

(1) Methods for determining the net water savings resulting from water conservation projects or programs carried out in accordance with this chapter, and other factors to be considered in determining the quantity or value of water available for potential designation as a trust water right;

(2) Criteria for determining the portion of net water savings to be conveyed to the state under this chapter;

(3) Criteria for prioritizing water conservation projects;

(4) A description of potential public benefits that will affect consideration for state financial assistance in RCW 90.42.030;

(5) Procedures for providing notification to potentially interested parties;

(6) Criteria for the assignment of uses of trust water rights acquired for implementation of state and local plans and programs for recovery of aquatic species listed as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.) or acquired in areas of the state not addressed in a regional water resource plan or critical area agreement; ((~~and~~))

(7) Procedures that will reasonably substitute for the requirements of RCW 90.03.380 and 90.03.390, that may be invoked in lieu of the requirements of RCW 90.03.380 and 90.03.390 at the option of the grantor, when trust water rights are conveyed under RCW 90.42.080(6); and

(8) Contracting procedures and other procedures not specifically addressed in this section.

These guidelines shall be submitted to the joint select committee on water resource policy before adoption.

Sec. 9. RCW 90.42.080 and 1993 c 98 s 4 are each amended to read as follows:

(1) The state may acquire all or portions of existing water rights, by purchase, gift, contract, or other appropriate means other than by condemnation, from any person or entity or combination of persons or entities. Once acquired, such rights are trust water rights.

(2) The department may enter into leases, contracts, or such other arrangements with other persons or entities as appropriate, to ensure that trust water rights acquired in accordance with this chapter may be exercised to the fullest possible extent.

(3) Trust water rights may be acquired by the state on a temporary or permanent basis.

(4) The provisions of RCW 90.03.380 and 90.03.390 apply to transfers of water rights under this section, except as provided in RCW 90.42.050(7).

(5) No funds may be expended for the purchase of water rights by the state pursuant to this section unless specifically appropriated for this purpose by the legislature.

(6) Trust water rights may be expressly conditioned by the grantor for instream use, for implementation of state and local plans and programs for recovery of aquatic species listed as threatened or endangered under the federal endangered species act (16 U.S.C. Sec. 1531 et seq.), or for compliance with federal actions under the act.

(7) Trust water rights may be expressly conditioned by the grantor to include all or portions of existing water rights as trust water rights on a temporary basis as a result of temporarily reduced water need where such reduction is due to varying weather conditions, including but not limited to precipitation and temperature, or the presence of water from a source not within the control of the water user, as long as the water user's diversion and delivery facilities are maintained in good operating condition consistent with beneficial use of the full amount of the water right. The trust water rights under this subsection may be acquired either in anticipation of such reduced water need or at the conclusion of a season during which use of water had been anticipated but not carried out.

NEW SECTION. Sec. 10. A new section is added to chapter 90.42 RCW to read as follows:

The status of a water right as a trust water right shall not be evidence of the validity or quantity of the right.

NEW SECTION. Sec. 11. A new section is added to chapter 90.03 RCW to read as follows:

(1) Applications for transfers or changes may be processed without regard to potential impairment to pending applications for new water rights for the same source of supply.

(2) The department may accord priority to the processing of applications for transfers of water rights to the trust water rights program under chapter 90.42 RCW."

ESHB 2994 - S COMM AMD

By Senators Fraser and Honeyford

ADOPTED 3/3/00

On page 1, line 1 of the title, after "rights;" strike the remainder of the title and insert "amending RCW 90.14.200, 90.38.020, 90.42.005, 90.42.010, 90.42.020, 90.42.030, 90.42.040, 90.42.050, and 90.42.080; and adding a new section to chapter 90.03 RCW and chapter 90.42 RCW."