BP BHEAD INT S [atlas:bill]

AN ACT Relating to water flows; amending RCW 90.54.020, 90.22.010, 90.22.030, 90.03.345, 90.03.247, 75.20.050, 90.03.380, 90.42.080, 90.14.160, 90.14.170, and 90.14.180; adding new sections to chapter 90.03 RCW; creating a new section; and repealing RCW 90.22.060.

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

NEW SECTION. Sec. 1. The legislature finds that adequate streamflows and lake levels are necessary for protecting and recovering salmon stocks and for achieving the state's high standards for protecting perennial water systems declared in the 1971 water resource fundamentals. To achieve adequate flows requires as a predicate that flow levels be expeditiously adopted and be based upon the best available science. The establishment of these levels should occur as early as possible in streams and rivers in which salmon populations are in danger of extinction. Once levels are established, measures should be implemented to ensure that existing flows are not diminished below these levels, and that further measures are taken to restore streamflows currently experiencing seasonal or periodic levels below these established levels. It is therefore the purpose of this act to provide additional authority in the state's water code to undertake these measures and to provide guidance to administering agencies in establishing priorities to address critical needs such as restoration of depressed salmon stocks.

Sec. 2. RCW 90.54.020 and 1997 c 442 s 201 are each amended to read as follows:

Utilization and management of the waters of the state shall be guided by the following general declaration of fundamentals:

(1) Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial.

(2) Allocation of waters among potential uses and users shall be based generally on the securing of the maximum net benefits for the people of the state. Maximum net benefits shall constitute total benefits less costs including opportunities lost.

(3) The quality of the natural environment shall be protected and, where possible, enhanced as follows:

(a) Perennial rivers and streams of the state shall be retained with ((~~base~~)) flows ((~~necessary to provide for preservation of~~)) adequate to support wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.

(b) Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served. Technology-based effluent limitations or standards for discharges for municipal water treatment plants located on the Chehalis, Columbia, Cowlitz, Lewis, or Skagit river shall be adjusted to reflect credit for substances removed from the plant intake water if:

(i) The municipality demonstrates that the intake water is drawn from the same body of water into which the discharge is made; and

(ii) The municipality demonstrates that no violation of receiving water quality standards or appreciable environmental degradation will result.

(c) Protection and restoration of streamflows adequate to support sustainable populations of salmon and trout stocks shall be a high priority in the planning and management of the state's water resources.

(4) The development of multipurpose water storage facilities shall be a high priority for programs of water allocation, planning, management, and efficiency. The department, other state agencies, local governments, and planning units formed under section 107 or 108 of this act shall evaluate the potential for the development of new storage projects and the benefits and effects of storage in reducing damage to stream banks and property, increasing the use of land, providing water for municipal, industrial, agricultural, power generation, and other beneficial uses, and improving streamflow regimes for fisheries and other instream uses.

(5) Adequate and safe supplies of water shall be preserved and protected in potable condition to satisfy human domestic needs.

(6) Multiple-purpose impoundment structures are to be preferred over single-purpose structures. Due regard shall be given to means and methods for protection of fishery resources in the planning for and construction of water impoundment structures and other artificial obstructions.

(7) Federal, state, and local governments, individuals, corporations, groups and other entities shall be encouraged to carry out practices of conservation as they relate to the use of the waters of the state. In addition to traditional development approaches, improved water use efficiency and conservation shall be emphasized in the management of the state's water resources and in some cases will be a potential new source of water with which to meet future needs throughout the state.

(8) Development of water supply systems, whether publicly or privately owned, which provide water to the public generally in regional areas within the state shall be encouraged. Development of water supply systems for multiple domestic use which will not serve the public generally shall be discouraged where water supplies are available from water systems serving the public.

(9) Full recognition shall be given in the administration of water allocation and use programs to the natural interrelationships of surface and ground waters.

(10) Expressions of the public interest will be sought at all stages of water planning and allocation discussions.

(11) Water management programs, including but not limited to, water quality, flood control, drainage, erosion control and storm runoff are deemed to be in the public interest.

Sec. 3. RCW 90.22.010 and 1997 c 32 s 4 are each amended to read as follows:

(1) The department of ecology ((~~may~~)) shall establish ((~~minimum~~)) water flows or levels for streams, lakes or other public waters ((~~for the purposes of protecting~~)) adequate to support fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, the department of ecology shall, when requested by the department of fish and wildlife to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if the department of ecology finds it necessary to preserve water quality, establish such ((~~minimum~~)) flows or levels as are ((~~required~~)) adequate to protect the resource or preserve the water quality described in the request or determination. Any request submitted by the department of fish and wildlife shall include a statement setting forth the need for establishing a ((~~minimum~~)) flow or level. When the department acts to preserve water quality, it shall include a similar statement with the proposed rule filed with the code reviser. This section shall not apply to waters artificially stored in reservoirs, provided that in the granting of storage permits by the department of ecology in the future, full recognition shall be given to downstream ((~~minimum~~)) flows, if any there may be, which have theretofore been established hereunder.

(2) The department of ecology shall incorporate the best available science in establishing flows or levels under this section. In developing methodologies for establishing flows or levels adequate to support the recovery of salmon and trout populations, the department shall consult with the department of fish and wildlife and the science panel created under RCW 75.46.050. The department shall periodically consult with the department of fish and wildlife and the science panel to ensure an ongoing application of best available science in its exercise of authority under this section. The review of existing methodologies or consideration of proposed revisions shall not be the basis for delay in proceeding to comply with the priority establishment of flows or levels under subsection (3) of this section.

(3) For the period beginning July 1, 1999, through June 30, 2003, the department of ecology shall place the highest priority in exercising the authority under this section upon the adoption of flows or levels for the recovery of depressed salmon and trout populations. To this end and in consultation with the salmon recovery office and with Indian tribes, the department shall establish a schedule for initiating and completing the establishment of flows or levels for state waters that support salmon and trout populations listed or candidates for listing under the federal endangered species act. The schedule shall be consistent with the state's salmon recovery strategy and shall establish a priority for early action on water bodies in which listed or candidate salmon or trout populations are dependent and in which inadequate flows or levels have been identified as a limiting factor on recovery. The schedule shall include the review and revision of existing flows or levels when determined by the department to fail to meet the standards of this section. The schedule shall adopt as a goal the establishment or revision of flows or levels by June 30, 2001, for all waters of the state that support salmon or trout populations that as of July 1, 1999, are listed or proposed for listing under the federal endangered species act, and for which flows or levels in such waters have been identified as a limiting factor on recovery.

Sec. 4. RCW 90.22.030 and 1988 c 127 s 81 are each amended to read as follows:

Except as provided in RCW 90.03.345, the establishment of levels and flows pursuant to RCW 90.22.010 shall in no way affect existing water and storage rights and the use thereof, including but not limited to rights relating to the operation of any hydroelectric or water storage reservoir or related facility. No right to divert or store public waters shall be granted by the department of ecology which shall conflict with regulations adopted pursuant to RCW 90.22.010 and 90.22.020 establishing flows or levels. All regulations establishing flows or levels shall be filed in a "Minimum Water Level and Flow Register" of the department of ecology.

Sec. 5. RCW 90.03.345 and 1979 ex.s. c 216 s 7 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, the establishment of reservations of water for agriculture, hydroelectric energy, municipal, industrial, and other beneficial uses under RCW 90.54.050(1) or ((~~minimum~~)) flows or levels under RCW 90.22.010 or 90.54.040 adopted before January 1, 1999, shall constitute appropriations within the meaning of this chapter with priority dates as of the effective dates of their establishment. Flows or levels adopted after January 1, 1999, shall have a priority date as of the date of the issuance of notice of rule making, or the effective date of an emergency rule establishing the flow or level. Whenever an application for a permit to make beneficial use of public waters embodied in a reservation, established after September 1, 1979, is filed with the department of ecology after the effective date of such reservation, the priority date for a permit issued pursuant to an approval by the department of ecology of the application shall be the effective date of the reservation.

(2) The governor may assign an earlier priority date of a flow or level adopted under subsection (1) of this section when necessary to avoid the unlawful taking of a listed salmon or trout species under the federal endangered species act. The governor's action shall be designed solely to avoid such a taking and shall be designed to minimize the impacts upon the exercise of water rights having an earlier priority date than that of the flow or level in the absence of the governor's action. The governor shall endeavor to provide prior notice to water rights holders potentially impacted by action under this section. The governor shall direct the department to schedule a public hearing within the basin for which the action is proposed and shall consider public comments received before taking the action. In determining whether action may be necessary under this section, the governor shall consult with entities charged with monitoring water flows and levels, water usage, and fish habitat in the area. An action by the governor may not extend more than one hundred eighty days but may be renewed if necessary to avoid such a taking. When an action is taken under this subsection in a basin in which watershed planning is being conducted under chapter 90.82 RCW, the governor shall request the planning unit to recommend measures to address streamflow requirements for listed salmon or trout species that will make action under this subsection unnecessary.

Sec. 6. RCW 90.03.247 and 1996 c 186 s 523 are each amended to read as follows:

(1) Whenever an application for a permit to make beneficial use of public waters is approved relating to a stream or other water body for which ((~~minimum~~)) flows or levels have been adopted and are in effect at the time of approval, the permit shall be conditioned to protect the levels or flows. No agency may establish ((~~minimum~~)) flows and levels or similar water flow or level restrictions for any stream or lake of the state other than the department of ecology whose authority to establish is exclusive, as provided in chapter 90.03 RCW and RCW 90.22.010 and 90.54.040. ((~~The provisions of other statutes, including but not limited to RCW 75.20.100 and chapter 43.21C RCW, may not be interpreted in a manner that is inconsistent with this section.~~)) In establishing such ((~~minimum~~)) flows, levels, or similar restrictions under authority provided in chapters 90.03, 90.22, and 90.54 RCW, the department shall, during all stages of development by the department of ecology of ((~~minimum~~)) flow proposals, consult with, and carefully consider the recommendations of, the department of fish and wildlife, the department of community, trade, and economic development, the department of agriculture, and representatives of the affected Indian tribes. Nothing herein shall preclude the department of fish and wildlife, the department of community, trade, and economic development, or the department of agriculture from presenting its views on ((~~minimum~~)) flow needs at any public hearing or to any person or agency, and the department of fish and wildlife, the department of community, trade, and economic development, and the department of agriculture are each empowered to participate in proceedings of the federal energy regulatory commission and other agencies to present its views on ((~~minimum~~)) flow needs.

(2) Before July 1, 2001, the department shall not issue additional permits for the withdrawal of surface or ground waters from water sources where:

(a) No flow or level has been adopted for the water source, or an adopted flow or level is determined by the department to require revision to meet the flow adoption standard under RCW 90.22.010;

(b) The water source is included within the designated habitat of one or more fish stocks listed under the federal endangered species act or are proposed for listing; and

(c) Adequate streamflows for fish are a limiting factor on recovery of such fish stocks. Notwithstanding the limitations of this subsection (2), the department may issue a temporary permit to address a public health or safety emergency, where the permit conditions are designed to minimize impacts on adequate streamflows for fish.

Sec. 7. RCW 75.20.050 and 1993 sp.s. c 2 s 29 are each amended to read as follows:

It is the policy of this state that a flow of water ((~~sufficient~~)) adequate to support game fish and food fish populations be maintained at all times in the streams of this state.

The director of ecology shall give the director of fish and wildlife notice of each application for a permit to divert or store water or for approval of a change or transfer under RCW 90.03.380 or 90.44.100. The same notice shall be given to the director of the office of salmon recovery when the application relates to a water source included within the designated critical habitat of a fish stock listed or proposed for listing under the federal endangered species act. The directors ((~~has~~)) have thirty days after receiving the notice to state his or her objections to the application. The permit shall not be issued until the thirty-day period has elapsed.

The director of ecology may refuse to issue a permit if, in the opinion of the director, issuing the permit might result in lowering the flow of water in a stream below the flow necessary to adequately support food fish and game fish populations in the stream. Alternatively, the director of ecology may issue the permit with conditions, including restrictions upon the season or quantity of use, to prevent withdrawals under the permit from lowering the flow below that flow necessary to adequately support food fish and game fish populations in the stream.

The provisions of this section shall in no way affect existing water rights.

NEW SECTION. Sec. 8. A new section is added to chapter 90.03 RCW to read as follows:

A right to the beneficial use of water may be maintained and established without a physical diversion of water and that right may be held by any person or by a unit of state or local government.

NEW SECTION. Sec. 9. A new section is added to chapter 90.03 RCW to read as follows:

(1) A person transferring a right to the beneficial use of water for instream purposes shall file a notice of the transfer with the department stating the name and address of the person or governmental unit to whom the right has been transferred.

(2) Such a transfer for instream purposes may be permanent or temporary. A temporary transfer may remain in effect for any length of time as determined by the water right holder. The holder of the water right temporarily transferred to instream purposes may transfer all or part of the water right to the use for which the water right was initially granted at any time the holder chooses.

Sec. 10. 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. 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) An instream use right approved under this section receives the same priority date as the water right from which it originated. The department shall identify the stream reach or reaches to which the right applies.

(3) 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)~~)) (4) 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)~~)) (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. 11. 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, 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. A water right acquired by the state that is expressly conditioned upon the use being limited to instream purposes shall be administered as a trust water right in compliance with that condition.

(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.

(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.

NEW SECTION. Sec. 12. A new section is added to chapter 90.03 RCW to read as follows:

Using funds specifically appropriated for the purpose of the acquisition of temporary or permanent rights to withdraw water, the department may contract with any person for the acquisition of such rights, if the contract provides that for the term of the acquisition the right will be maintained for the benefit of the public for the maintenance and augmentation of streamflows.

Sec. 13. RCW 90.14.160 and 1981 c 291 s 1 are each amended to read as follows:

Any person entitled to divert or withdraw waters of the state through any appropriation authorized by enactments of the legislature prior to enactment of chapter 117, Laws of 1917, or by custom, or by general adjudication, who abandons the same, or who voluntarily fails, without sufficient cause, to beneficially use all or any part of said right to divert or withdraw for any period of five successive years after September 1, 1979, shall relinquish such right or portion thereof, and said right or portion thereof shall revert to the state, and the waters affected by said right shall become available for appropriation in accordance with RCW 90.03.250. After June 30, 1999, any water rights relinquished under this section as a result of failure to use water beneficially shall be dedicated to and managed in accordance with the trust water rights program established under chapter 90.42 RCW if the relinquished water right is needed and can be used to protect or restore streamflows.

Sec. 14. RCW 90.14.170 and 1967 c 233 s 17 are each amended to read as follows:

Any person entitled to divert or withdraw waters of the state by virtue of his ownership of land abutting a stream, lake, or watercourse, who abandons the same, or who voluntarily fails, without sufficient cause, to beneficially use all or any part of said right to withdraw or divert said water for any period of five successive years after July 1, 1967, shall relinquish such right or portion thereof, and such right or portion thereof shall revert to the state, and the waters affected by said right shall become available for appropriation in accordance with the provisions of RCW 90.03.250. After June 30, 1999, any water rights relinquished under this section as a result of failure to use water beneficially shall be dedicated to and managed in accordance with the trust water rights program established under chapter 90.42 RCW if the relinquished water right is needed and can be used to protect or restore streamflows.

Sec. 15. RCW 90.14.180 and 1987 c 109 s 101 are each amended to read as follows:

Any person hereafter entitled to divert or withdraw waters of the state through an appropriation authorized under RCW 90.03.330, 90.44.080, or 90.44.090 who abandons the same, or who voluntarily fails, without sufficient cause, to beneficially use all or any part of said right to withdraw for any period of five successive years shall relinquish such right or portion thereof, and such right or portion thereof shall revert to the state, and the waters affected by said right shall become available for appropriation in accordance with RCW 90.03.250. After June 30, 1999, any water rights relinquished under this section as a result of failure to use water beneficially shall be dedicated to and managed in accordance with the trust water rights program established under chapter 90.42 RCW if the relinquished water right is needed and can be used to protect or restore streamflows. All certificates hereafter issued by the department of ecology pursuant to RCW 90.03.330 shall expressly incorporate this section by reference.

NEW SECTION. Sec. 16. A new section is added to chapter 90.03 RCW to read as follows:

(1) Beginning in 2000, by September 30th of each year, the department shall submit a report on the implementation of chapter . . ., Laws of 1999 (this act) in the fiscal year completed the previous June 30th to the appropriate standing committees of the house of representatives and senate. The report shall describe activities related to instream flow rules and permit actions in which streamflow protection was a significant consideration.

(2) In the initial report submitted in 2000, the department shall include a review of the trust water rights program under chapter 90.42 RCW and identify administrative and statutory barriers to obtaining greater use of trust water rights to augment streamflows and to provide a mechanism for meeting both offstream and instream water demands identified in local watershed plans or other water resource management plans. The report shall make recommendations for administrative and statutory modifications to encourage greater use of the program, to provide more timely review and approval of proposed trust water rights, and to provide a greater range of circumstances in which the program may be employed to meet identified instream and offstream water needs consistent with applicable watershed plans.

(3) Beginning in 2005, a report need not be submitted annually but the department may report periodically.

NEW SECTION. Sec. 17. RCW 90.22.060 and 1998 c 245 s 172 & 1993 sp.s. c 4 s 13 are each repealed.