BP BHEAD INT S [atlas:bill]

AN ACT Relating to the beneficial use of water under a water code permit by public water systems; amending RCW 90.03.330; 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. Upon the request of a public water system, the department shall evaluate and issue if appropriate, incremental certificates of water right, not more than once every six years, that reflect either instantaneous or annual quantities of water, or both, perfected by actual beneficial use. The beneficial use of water must be demonstrated by pumping or diversion records, meter data, or other reasonable information showing the extent of actual beneficial use of water. 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~~)) certificate, be transmitted by the department ((~~transmitted~~)) to the county auditor of the county or counties where the distributing system or any part thereof is located((~~, and~~)). The certificate shall be recorded in the office of such county auditor, and thereafter be transmitted to the ((~~owner thereof~~)) certificate holder.

(2) Certificates of water right held by public water systems that document a combination of water that has been put to beneficial use and water that has never been put to beneficial use, that have department of health approval for the source associated with the right, and for which the entity holding the certificate has constructed facilities in place to use the water authorized by the water right, shall be administered in the following manner:

(a) Any instantaneous or annual quantity of water that has been perfected by actual beneficial use of water before the effective date of this section shall remain a certificated right in good standing.

(b) Any instantaneous or annual quantity of water not perfected by beneficial use before the effective date of this section will be reinstated as a water right permit within the meaning of this chapter and the holder of the permit is authorized to continue development and use of water under the permit. The reinstated permit shall be administered by the department as an inchoate water right permit in good standing, with a priority date as of the original application, subject to the requirements of sections 3 and 4 of this act.

(3) For a permit held by a public water system reinstated by this section that has a department of health-approved number of connections and for which the original water right application filing was for a discrete number of connections, water use up to the department of health-approved number of connections as of the effective date of this section is allowed within the existing water service area of the public water system. If the public water system does not have an existing service area established under chapter 43.20 or 70.116 RCW, the place of use as authorized under the original certificate shall be the place of use for water that is reinstated to permit status under this section.

(4) For a permit held by a public water system reinstated by this section that has a department of health-approved number of equivalent residential units and for which the original water right application filing was made for a discrete number of connections, or for then-current population and future requirements of the municipality or community, water service shall be allowed up to the number of equivalent residential units approved by the department of health as of the effective date of this section for the existing service area of the public water system as established under chapter 43.20 or 70.116 RCW. Water service provided through interties must comply with RCW 90.03.383.

(5) For a permit held by a public water system reinstated by this section that has an unspecified number of connections in its department of health-approved water system plan and for which the original application filing was made for then-current population and future requirements of the municipality or community, water service shall be allowed to satisfy the water requirements of the existing service area as established under chapter 43.20 or 70.116 RCW. Water service provided through interties must comply with RCW 90.03.383.

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

(1) Any public water system asserting that it holds a certificate of water right that documents a combination of water put to beneficial use and water not yet put to beneficial use shall provide evidence to the department demonstrating that the criteria in RCW 90.03.330(2) are met such that a superseding certificate and water right permit should be issued. A demonstration of meeting the criteria of RCW 90.03.330 shall be through existing planning programs and processes of the department of health or ecology to the extent practicable. All class A public water systems asserting they hold a certificate of water right water that documents a combination of water put to beneficial use and water not yet put to beneficial use shall initially document compliance with RCW 90.03.330 not less than two years and not more than eight years from the effective date of this section. All other public water systems asserting they hold a certificate of water right water that documents a combination of water put to beneficial use and water not yet put to beneficial use shall initially document compliance with RCW 90.03.330 not less than four years from the effective date of this section, unless requested by the department to do so sooner. If the department, upon reviewing a public water system plan or other applicable information, determines that the system has an inchoate water right as provided in RCW 90.03.330, the department shall issue a superseding certificate for the portion of the right that has been put to beneficial use and shall issue a permit for the inchoate portion of the water right that is reinstated to permit status. The permit shall have a development schedule and be conditioned with the performance standards created by section 3 of this act. The development schedule shall be twenty years from the effective date of this section with the option to extend if good cause is shown under RCW 90.03.320, except that the department may:

(a) Authorize a development schedule longer than twenty years, but not more than fifty years, if a planned need is demonstrated, and (i) a withdrawal facility with a hydraulic capacity beyond that needed for twenty years was constructed, or (ii) debt service requirements extend for such a period;

(b) Authorize a development schedule of less than twenty years if the permittee, with reasonable diligence, can perfect the permit in a shorter period of time; or

(c) Deny any time for further development if there is no demonstrated need for the water based on the water system plan or other applicable information.

(2) Upon any determination of noncompliance with the performance standards created by section 3 of this act, the permittee shall be granted, by written notice, a reasonable period of time to comply. If the permittee receiving such a notification disagrees with the department's determination of a reasonable time for compliance, it may, at its election, initiate nonbinding mediation with the department to resolve the dispute. After mediation, if the dispute is not resolved, the state shall issue an order to effect the performance standards. The order is appealable to the pollution control hearings board.

(3) At the end of the construction schedule authorized in the permit, the permittee may request an extension of time only as provided in RCW 90.03.320.

(4) The department shall process requests made under this section generally in the order in which received.

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

(1) Any permittee with a water right permit reinstated under RCW 90.03.330 must meet the performance standards of this section. Demonstration of compliance with performance standards shall be through existing planning programs and processes of the department of health or ecology to the extent practicable. All class A public water systems asserting they hold a certificate of water right water that documents a combination of water put to beneficial use and water not yet put to beneficial use shall initially document compliance with RCW 90.03.330 not less than two years and not more than eight years from the effective date of this section. All other public water systems asserting they hold a certificate of water right water that documents a combination of water put to beneficial use and water not yet put to beneficial use shall initially document compliance with RCW 90.03.330 not less than four years from the effective date of this section, unless requested by the department to do so sooner. If the permittee complies with the performance standards, it will be in compliance with RCW 90.03.320. The performance standards are:

(a) Evidence demonstrating a need for the water within the development schedule specified by the permit consistent with demand forecasts prepared in accordance with the demand forecasting methods specified by the departments of ecology and health;

(b) Evidence that the water system's use of water is fully consistent with approved local land use planning within the constraints of water availability and cost;

(c) Evidence that water use meets state conservation and water use efficiency requirements existing at the time the documentation is submitted;

(d) Current information on how the utility's recent and proposed beneficial use of water under the permit is consistent with state and federal laws legally applicable to water use under the permit;

(e) Evidence of participation by the permittee, to the extent practicable, in watershed planning under chapter 90.82 RCW, coordinated water system planning under chapter 70.119 RCW, or other collaborative watershed planning efforts, if initiated; and

(f) Evidence of participation in and implementation of agreements under section 4 of this act, as required.

(2) For the performance standards in subsection (1) of this section, the department of health is responsible for ensuring compliance with subsection (1)(a) through (c) of this section and the department of ecology is responsible for ensuring compliance with subsection (1)(d) through (f) of this section when compliance with the performance standards is identified in a water system plan. If no water system plan is required, the department of ecology is responsible for ensuring compliance with all performance standards.

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

(1) Where the source of water authorized for diversion under a permit reinstated by section 2 of this act is either a surface water source or a ground water source that is interconnected with a surface water body that provides habitat for salmon or trout populations listed or proposed for listing under the federal endangered species act or determined by the department of fish and wildlife to be depressed or critical, and where water can be used to protect and restore streamflows that are needed by such species and stocks, the public water system shall enter into and implement a binding agreement with the departments of ecology and fish and wildlife to specify how inchoate water is developed concurrently with the restoration and protection of streamflow necessary for the recovery of such fish species.

(2) In developing binding agreements with permittees under this section, the departments of fish and wildlife and ecology shall give priority to water systems having more than one thousand service connections. Agreements with water systems having fewer than one thousand service connections shall be a priority, if the system's water source is identified as a priority by the department of fish and wildlife in consultation with other concerned state agencies. Public water systems are encouraged to join together for purposes of concluding agreements under this section and to do so on a watershed or multiwatershed basis to promote the recovery of fish stocks and efficient delivery of public water supply.

(3) The purpose of the binding agreement is to identify and make mutual commitments to:

(a) Take immediate actions to arrest the further decline in fish stocks;

(b) Establish, protect, and restore an instream flow that is sufficient to restore and maintain properly functioning habitat conditions to support a harvestable supply of fish. Any instream flows that are established in connection with a binding agreement for a water resource inventory area, as defined by chapter 173-500 WAC, overlaying the same geographic areas that received a grant from the department under chapter 90.82 RCW shall be interim unless and until such planning for instream flow, if applicable, is complete under chapter 90.82 RCW. Interim instream flows established shall be conservative with regard to preserving instream values. Before establishing an instream flow under this section, the department shall engage in government-to-government consultation with affected tribes regarding the setting of such flows;

(d) Establish benchmarks or milestones that can be used to objectively measure the success in the recovery and maintenance of the listed salmonid stocks; and

(e) Establish provisions for an adaptive management approach to modify the binding agreement to effect its goal.

(4) If a binding agreement is not developed and signed by the departments of ecology and fish and wildlife and the permittee within two years of the effective date of this section, the permittee's use of water from the effective date of this section under the permit shall be subject to applicable source instream flows created by rule existing as of the effective date of this section. If instream flows have not been established by rule or the rule's instream flow is insufficient, an instream flow shall be specified by the department in consultation with the department of fish and wildlife under RCW 75.20.050 by permit proviso, and the permit shall be subject to any future instream flows adopted or amended by the department.

(5) Within four years of the effective date of this section and every three years thereafter, the department, in consultation with the department of fish and wildlife, shall review the binding agreement and its implementation to determine its effectiveness in contributing to the recovery and maintenance of the listed salmonid stocks. The review shall also assess the actions of all parties to implement the agreement. If the department of ecology determines by written findings that a permittee who is party to the binding agreement has failed to abide by the agreement, it shall condition the use of water under the permit, from the effective date of this section, to applicable instream flows created by rule existing as of the effective date of this section. If instream flows have not been established by rule or the rule's instream flow is insufficient, an instream flow shall be specified by the department in consultation with the department of fish and wildlife under RCW 75.20.050 by permit proviso, and the permit shall be subject to any future instream flows adopted or amended by the department.

(6) If any permittee who is party to a binding agreement disagrees with any determinations made by the department under this section, the permittee may elect to initiate nonbinding mediation with the department to resolve a dispute. After mediation, if the dispute is not resolved, the permittee may appeal any findings made by the department to the pollution control hearings board.

(7) This section does not waive any other requirement of the law related to the use of water.

NEW SECTION. Sec. 5. A new section is added to chapter 90.03 RCW to read as follows:

Nothing in this act, including decisions made under the authority of this act, may impair any existing water right.