[atlas:bill]

AN ACT Relating to water rights; amending RCW 90.03.330, 90.03.380, and 90.44.100; and adding new sections to chapter 90.03 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 90.03.330 and 1987 c 109 s 89 are each amended to read as follows:

(1) Upon a showing satisfactory to the department that any appropriation has been perfected in accordance with the provisions of this chapter, it shall be the duty of the department to issue to the applicant a certificate stating such facts in a form to be prescribed by ((~~him~~)) the department, and such certificate shall thereupon be recorded with the department. Any original water right certificate issued, as provided by this chapter, shall be recorded with the department and thereafter, at the expense of the party receiving the same, be by the department transmitted to the county auditor of the county or counties where the distributing system or any part thereof is located, and be recorded in the office of such county auditor, and thereafter be transmitted to the owner thereof.

(2) Each water right documented by a certificate issued under this chapter or chapter 90.44 RCW or by a claim filed in the state's water rights claims registry under chapter 90.14 RCW is composed of two fundamental parts. One part is the portion of the right that has been beneficially used. The second is the inchoate portion of the right. The inchoate portion of the right may be exercised only as provided in section 2 of this act for water rights held by public water systems for the purposes of public water systems or as provided in section 3 of this act for water rights held by any other person or entity or for any other purpose or use. The sum of these parts for any water right shall not exceed instantaneously or annually the extent of the right stated on the certificate or the extent of the right stated on the statement of claim filed for the right under chapter 90.14 RCW. The priority date for the beneficially used portion of a water right developed by exercising an inchoate portion of the water right under section 2 or 3 of this act is the priority date of the original water right.

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

The inchoate portion of a water right held by a public water system for public water system purposes as described in RCW 90.03.330(2) may be exercised only as provided in this section.

(1) The amount of water diverted or withdrawn for beneficial use under the water right shall not exceed the amount represented by the capacity of the water diversion, withdrawal, or distribution facilities constructed for using the right on the effective date of this section or on the date a certificate is issued for a new right under this chapter or chapter 90.44 RCW, whichever date is later.

(2) The population served by the right, the number of service connections, and the amount of water beneficially used under the right may be expanded through the conversion of an inchoate portion of the right to a beneficially used portion of the right within the place of use listed on the certificate or in the statement of claim if the conditions listed in subsection (3) of this section are satisfied.

(3) If the place of use of the public water system's water right includes an area that is:

(a) Within the boundaries of a critical water supply service area designated under chapter 70.116 RCW for which a coordinated water system plan has been adopted, the public water system shall satisfy requests for service within the area dedicated to service by the system under the plan before use of water under the inchoate portion of the system's water right may be expanded for use elsewhere; or

(b) Within the corporate limits of a city or town or within the boundaries of an urban growth area as designated under chapter 36.70A RCW, the first priority for expanding use of water under the inchoate portion of the system's water right shall be, except as provided in (a) of this subsection, use within those limits or boundaries and this priority shall be clearly documented in any water system plan submitted by the public water system for review by the department of health or the plan shall not be approved by the department of health.

(4) If a portion of the area governed by a coordinated water system plan or area within a city or town or urban growth area is within the place of use for a public system's water right as described in subsection (3) of this section, any part of the inchoate portion of the system's right may be transferred or changed to use for public water system purposes within any other part of the critical water supply service area or any other area within the corporate boundaries of the city or town or within the urban growth area if all conservation measures in guidelines of the department of health that apply to the distribution systems of public water systems are incorporated into the distribution of the water within such an expanded place of use.

Although the transfer or change shall be approved by the department of ecology, the conditions provided by this subsection authorizing the transfer or change are the exclusive tests to be used by the department in approving the transfer or change.

(5) Any part of an inchoate portion of a public water system's water right may be converted to a beneficially used portion of the right through the transfer or change of the right to another public water system through the use of an intertie or otherwise and for use for public water system purposes if all conservation measures in guidelines of the department of health that apply to the distribution systems of public water systems are incorporated into the distribution of the water within such an expanded place of use. Such a transfer or change shall be made as provided in RCW 90.03.380, 90.03.383, 90.03.390, or 90.44.100.

(6) This section shall not be construed as permitting any use of the right in a manner otherwise expressly restricted or prohibited by the provisions or conditions listed on the certificate or in the statement of claim.

(7) If the only place of use specified in a water right certificate held by a public water system is the system's service area, the place of use for the certificate for the purposes of this section is the service area identified in the latest water system plan approved before the effective date of this section by the department of health for the public water system.

(8) If an inchoate portion of a water right is converted to a beneficially used portion of the water right after the effective date of this section and the holder of the water right is a public water system with one thousand or more service connections, the system and the department shall study the effects of such an action on habitat for fish stocks listed or proposed for listing as threatened or endangered under the federal endangered species act or as critical or depressed in the state's salmon and steelhead stock inventory. The study shall be completed within two years of the action. If the action would adversely impact such habitat, the system shall, within one year of completing the study, develop a plan for mitigating the adverse impacts and for monitoring the effectiveness of the mitigation effort. This subsection does not apply if use of the water right is regulated under a license issued by the federal energy regulatory commission.

NEW SECTION. Sec. 3. A new section is added to chapter 90.03 RCW to read as follows:

The inchoate portion of a water right other than a right to use water for public water system purposes is the portion of the right that becomes available for use by the holder of the water right through the implementation of water distribution and use efficiency measures. Such an inchoate portion of the water right may be transferred or changed to use on other lands owned by the holder of the water right if:

(1) The amount of water diverted or withdrawn by the water right holder for beneficial use under the original certificate or statement of claim is not expanded;

(2) The water distribution and use efficiency measures employed by the water right holder at such a new place of use are at least as efficient as those employed at the original place of use;

(3) The place of use to which the water would be transferred is within one mile of any part of the perimeter of the place of use under the original right.

A transfer or change that satisfies the conditions of subsections (1) through (3) of this section is presumed to be in the public interest and is presumed to be neither detrimental nor injurious to existing rights. The burden is on a challenging party or the department to provide evidence that overcomes this presumption.

NEW SECTION. Sec. 4. A new section is added to chapter 90.03 RCW to read as follows:

If funding for financing water efficiency measures is provided by the state and the measures result in the ability of a water right holder to use the inchoate portion of the holder's water right under section 3 of this act, a portion of the inchoate right made usable shall be transferred to the state trust water right system under chapter 90.38 or 90.42 RCW that is equal to the proportion of the total cost of the measures that is financed with state funding. Any water rights received by the state shall be transferred to the state trust water right system under chapter 90.38 or 90.42 RCW.

Sec. 5. RCW 90.03.380 and 1997 c 442 s 801 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. Except as provided in section 3 of this act, 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 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) The tests provided by this section for determining whether a transfer or change may be approved by the department are modified as provided in sections 2(4) and 3 of this act for the circumstances governed by sections 2(4) and 3 of this act.

(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. 6. RCW 90.44.100 and 1997 c 316 s 2 are each amended to read as follows:

(1) 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 the holder's 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 the holder may change the manner or the place of use of the water.

(2) An amendment to construct replacement or a new additional well or wells at a location outside of the location of the original well or wells or to change the manner or place of use of the water 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: (a) The additional or replacement well or wells shall tap the same body of public ground water as the original well or wells; (b) where a replacement well or wells is approved, the use of the original well or wells shall be discontinued and the original well or wells shall be properly decommissioned as required under chapter 18.104 RCW; (c) where an additional well or wells is constructed, the original well or wells may continue to be used, but the combined total withdrawal from the original and additional well or wells shall not enlarge the right conveyed by the original permit or certificate; and (d) 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.

(3) The construction of a replacement or new additional well or wells at the location of the original well or wells shall be allowed without application to the department for an amendment. However, the following apply to such a replacement or new additional well: (a) The well shall tap the same body of public ground water as the original well or wells; (b) if a replacement well is constructed, the use of the original well or wells shall be discontinued and the original well or wells shall be properly decommissioned as required under chapter 18.104 RCW; (c) if a new additional well is constructed, the original well or wells may continue to be used, but the combined total withdrawal from the original and additional well or wells shall not enlarge the right conveyed by the original water use permit or certificate; (d) the construction and use of the well shall not interfere with or impair water rights with an earlier date of priority than the water right or rights for the original well or wells; (e) the replacement or additional well shall be located no closer than the original well to a well it might interfere with; (f) the department may specify an approved manner of construction of the well; and (g) the department shall require a showing of compliance with the conditions of this subsection (3).

(4) As used in this section, the "location of the original well or wells" is the area described as the point of withdrawal in the original public notice published for the application for the water right for the well.

(5) The tests provided by this section for determining whether a change or amendment may be approved by the department are modified as provided in sections 2(4) and 3 of this act for the circumstances governed by sections 2(4) and 3 of this act.