H 1147

H‑1147.2 _____________________________________________

HOUSE BILL 1877

_____________________________________________

State of Washington 57th Legislature 2001 Regular Session

By Representatives G. Chandler and Linville

Read first time 02/07/2001. Referred to Committee on Agriculture & Ecology.

_1 AN ACT Relating to modifications of water rights; amending RCW

_2 90.03.380, 90.80.010, 90.80.070, 90.80.080, 90.80.100, 90.80.120,

_3 90.80.140, 90.66.040, and 90.66.060; adding a new section to

_4 chapter 90.80 RCW; adding a new section to chapter 90.66 RCW;

_5 creating new sections; and declaring an emergency.

_6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_7 NEW SECTION. Sec. 1. The legislature hereby establishes a pilot

_8 project for purposes of evaluating means of reducing the current

_9 backlog of applications for changes, transfers, or amendments of

10 existing water rights. For the purposes of this pilot project, the

11 legislature intends to allow the processing of applications for

12 such changes, transfers, or amendments without regard to possible

13 impairment of pending applications for new water rights in

14 specific watersheds. While the legislature intends to assist the

15 processing of such changes, transfers, and amendments, it does not

16 intend to divert the department of ecology's efforts or in any

17 other way deter the processing of applications for new water

18 rights.

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_1 This section is null and void if any one of sections 4 through

_2 10 of this act is vetoed by June 30, 2001.

_3 Sec. 2. RCW 90.03.380 and 1997 c 442 s 801 are each amended to

_4 read as follows:

_5 (1) The right to the use of water which has been applied to a

_6 beneficial use in the state shall be and remain appurtenant to the

_7 land or place upon which the same is used: PROVIDED, HOWEVER, That

_8 the right may be transferred to another or to others and become

_9 appurtenant to any other land or place of use without loss of

10 priority of right theretofore established if such change can be

11 made without detriment or injury to existing rights. The point of

12 diversion of water for beneficial use or the purpose of use may be

13 changed, if such change can be made without detriment or injury to

14 existing rights.

15 (a) A change in the place of use, point of diversion, and/or

16 purpose of use of a water right to enable irrigation of additional

17 acreage or the addition of new uses may be permitted if such

18 change results in no increase in the annual consumptive quantity

19 of water used under the water right. For purposes of this section,

20 "annual consumptive quantity" means the estimated or actual annual

21 amount of water diverted pursuant to the water right, reduced by

22 the estimated annual amount of return flows, averaged over the

23 most recent five-year period of continuous beneficial use of the

24 water right.

25 (b) Before any transfer of such right to use water or change of

26 the point of diversion of water or change of purpose of use can be

27 made, any person having an interest in the transfer or change,

28 shall file a written application therefor with the department, and

29 the application shall not be granted until notice of the

30 application is published as provided in RCW 90.03.280. If it shall

31 appear that such transfer or such change may be made without

32 injury or detriment to existing rights, the department shall issue

33 to the applicant a certificate in duplicate granting the right for

34 such transfer or for such change of point of diversion or of use.

35 The certificate so issued shall be filed and be made a record with

36 the department and the duplicate certificate issued to the

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_1 applicant may be filed with the county auditor in like manner and

_2 with the same effect as provided in the original certificate or

_3 permit to divert water.

_4 (2) If an application for change proposes to transfer water

_5 rights from one irrigation district to another, the department

_6 shall, before publication of notice, receive concurrence from each

_7 of the irrigation districts that such transfer or change will not

_8 adversely affect the ability to deliver water to other landowners

_9 or impair the financial integrity of either of the districts.

10 (3) A change in place of use by an individual water user or

11 users of water provided by an irrigation district need only

12 receive approval for the change from the board of directors of the

13 district if the use of water continues within the irrigation

14 district, and when water is provided by an irrigation entity that

15 is a member of a board of joint control created under chapter

16 87.80 RCW, approval need only be received from the board of joint

17 control if the use of water continues within the area of

18 jurisdiction of the joint board and the change can be made without

19 detriment or injury to existing rights.

20 (4) This section shall not apply to trust water rights acquired

21 by the state through the funding of water conservation projects

22 under chapter 90.38 RCW or RCW 90.42.010 through

23 90.42.070. Subsection (1)(a) of this section does not apply to and

24 shall not be construed as providing any limitation to the

25 transfers, changes, or amendments of water rights established

26 under the authority of a family farm permit that are authorized

27 under section 11 of this act.

28 (5) Pending applications for new water rights are not entitled

29 to protection from impairment, injury, or detriment when an

30 application for a change, transfer, or amendment of an existing

31 surface or ground water right is considered.

32 (6) Applications relating to existing surface or ground water

33 rights may be processed and decisions on them rendered

34 independently of processing and rendering decisions on pending

35 applications for new water rights within the same source of supply

36 without regard to the date of filing of the pending applications

37 for new water rights.

38 (7) An application may be processed ahead of a previously filed

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_1 application, when sufficient information for a decision on the

_2 previously filed application is not available and the applicant

_3 for the previously filed application is sent written notice that

_4 explains what information is not available and why and informs the

_5 applicant that processing of the next application in order of

_6 filing will begin. No such previously filed application shall lose

_7 its priority date. This subsection does not affect any other

_8 existing authority to process applications.

_9 (8) No applicant for a change, transfer, or amendment of a

10 surface or ground water right may be required to give up any part

11 of the applicant's valid water right or claim to a state agency,

12 the trust water rights program, or to other persons, as a

13 condition of processing or approving the application.

14 (9) As used in this section, "WRIA" means a water resource

15 inventory area established in chapter 173-500 WAC as it existed on

16 January 1, 2001.

17 (10) Subsections (5) through (12) of this section provide the

18 pilot project referred to in section 1 of this act and apply only

19 in WRIA's 1, 6, 13, 23, 32, 37, 39, 47, and 48 and in the ground

20 water management subarea described in chapter 173-128A WAC.

21 (11) Beginning January 1, 2002, the department shall report to

22 the legislature by January 1st and by June 30th of each year on

23 the results to date of the pilot project.

24 (12) Subsections (5) through (12) of this section are in effect

25 beginning the effective date of this section through June 30,

26 2004.

27 (13) The 2001 amendments to this section are null and void if

28 any one of sections 4 through 10 of this act is vetoed by June 30,

29 2001.

30 NEW SECTION. Sec. 3. The expiration of the pilot project

31 authorized by section 2 (5) through (11) of this act shall not

32 affect any right acquired or liability or obligation incurred or

33 any rule or order adopted or decision made under section 2 (5)

34 through (11) of this act nor shall it affect any proceeding

35 instituted under or with regard to section 2 (5) through (11) of

36 this act.

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_1 This section is null and void if any one of sections 4 through

_2 10 of this act is vetoed by June 30, 2001.

_3 Sec. 4. RCW 90.80.010 and 1997 c 441 s 2 are each amended to read

_4 as follows:

_5 The following definitions apply throughout this chapter, unless

_6 the context clearly requires otherwise.

_7 (1) "Board" means a water conservancy board created under this

_8 chapter.

_9 (2) "Commissioner" means a member of a water conservancy board.

10 (3) "Department" means the department of ecology.

11 (4) "Director" means the director of the department of ecology.

12 (5) "Transfer" means a transfer, change, or amendment to a

13 water right referred to in RCW 90.03.380, 90.03.390, or 90.44.100.

14 Sec. 5. RCW 90.80.070 and 1997 c 441 s 9 are each amended to read

15 as follows:

16 (1) Applications to the board for transfers shall be made on a

17 form provided by the department, and shall contain such additional

18 information as may be required by the board in order to review and

19 act upon the application. At a minimum, the application shall

20 include information sufficient to establish to the board's

21 satisfaction of the transferor's right to the quantity of water

22 being transferred, and a description of any applicable limitations

23 on the right to use water, including the point of diversion or

24 withdrawal, place of use, source of supply, purpose of use,

25 quantity of use permitted, time of use, period of use, and the

26 place of storage.

27 (2) The transferor and the transferee of any proposed water

28 transfer may apply to a board for approval of the transfer if the

29 water proposed to be transferred is currently diverted, withdrawn,

30 or used within the geographic boundaries of the county, or would

31 be diverted, withdrawn, or used within the geographic boundaries

32 of the county if the transfer is approved. In the case of a

33 proposed water transfer in which the water is currently diverted

34 or would be diverted outside the geographic boundaries of the

35 county, the board shall hold a public hearing in the county of the

36 diversion or proposed diversion. The board shall provide for

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_1 prominent publication of notice of such hearing in a newspaper of

_2 general circulation published in the county in which the hearing

_3 is to be held for the purpose of affording an opportunity for

_4 interested persons to comment upon the application.

_5 (3) After an application for a transfer is filed with the

_6 board, the board shall publish notice of the application in

_7 accordance with the publication requirements and send notice to

_8 state agencies as provided in RCW 90.03.280. Any person may submit

_9 comments to the board regarding the application. Any water right

10 holder claiming detriment or injury to an existing water right may

11 intervene in the application before the board pursuant to

12 subsection (4) of this section. If a majority of the board

13 determines that the application is complete, in accordance with

14 the law and the transfer can be made without injury or detriment

15 to existing water rights in accordance with RCW 90.03.380,

16 90.03.390, or 90.44.100, the board shall issue the applicant a

17 certificate conditionally approving the transfer, subject to

18 review by the director.

19 (4) If a water right holder claims a proposed transfer will

20 cause an impairment to that right, the water right holder is

21 entitled to a hearing before the board. The board shall receive

22 such evidence as it deems material and necessary to determine the

23 validity of the claim of impairment. If the party claiming the

24 impairment establishes by a preponderance of the evidence that his

25 or her water right will be impaired by the proposed transfer, the

26 board may not approve the transfer unless the applicant and the

27 impaired party agree upon compensation for the impairment.

28 Sec. 6. RCW 90.80.080 and 1997 c 441 s 11 are each amended to

29 read as follows:

30 (1) If an application for a transfer is approved by the board,

31 the board shall submit a copy of the proposed certificate

32 conditionally approving the transfer to the department for

33 review. The board shall also submit a report summarizing any

34 factual findings on which the board relied in deciding to approve

35 the proposed transfer. The board shall also transmit notice of the

36 board's decision by mail to any person who objected to the

37 transfer or who requested notice.

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_1 If an application for a transfer is denied by the board, the

_2 board shall submit a copy of a record of its decision denying the

_3 transfer to the department for review. The board shall also submit

_4 a report summarizing any factual findings on which the board

_5 relied in deciding to deny the proposed transfer. The board shall

_6 also transmit notice of the board's decision by mail to any person

_7 who objected to the transfer or who requested notice.

_8 (2) The director shall review each proposed transfer

_9 conditionally approved by a board and each decision by a board

10 denying an application for such a transfer for compliance or

11 noncompliance with state water transfer laws including RCW

12 90.03.380, 90.03.390, and 90.44.100, rules and guidelines adopted

13 by the department, and other applicable law.

14 (3) Any party to a transfer or a third party who alleges his or

15 her water right will be impaired by the proposed transfer may file

16 objections with the department. If objections to the transfer are

17 filed with the department, the board shall forward the files and

18 records upon which it based its decision to the department.

19 (4) The director shall review the action of the board and

20 affirm, reverse, or modify the action of the board within forty-

21 five days of receipt. The forty-five day time period may be

22 extended for an additional thirty days by the director, upon the

23 consent of the parties to the transfer. If the director fails to

24 act within this time period, the board's action is final. Upon

25 approval of a water transfer by the action or nonaction of the

26 director, the conditional certificate issued by the board is final

27 and valid.

28 NEW SECTION. Sec. 7. A new section is added to chapter 90.80

29 RCW to read as follows:

30 No action may be brought or maintained against a commissioner,

31 agent, or employee of a water conservancy board for any

32 noncontractual acts or omissions of the water conservancy board or

33 its commissioners, agents, or employees which are related to water

34 transfers under this chapter.

35 Sec. 8. RCW 90.80.100 and 1997 c 441 s 13 are each amended to read

36 as follows:

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_1 ((~~Neither~~)) The county ((~~nor~~)), the water conservancy board,

_2 and the department shall not be subject jointly or severally to

_3 any cause of action or claim for damages arising out of transfers

_4 approved or denied by a board under this chapter.

_6 Sec. 9. RCW 90.80.120 and 1997 c 441 s 16 are each amended to read

_7 as follows:

_8 (1) A commissioner of a water conservancy board who has an

_9 ownership interest in a water right subject to an application for

10 approval of a transfer ((~~or change~~)) by the board, shall not

11 participate in the board's review or decision upon the

12 application.

13 (2) A commissioner of a water conservancy board who also serves

14 as an employee or upon the governing body of a municipally owned

15 water system, shall not participate in the board's review or

16 decision upon an application for the transfer ((~~or change~~)) of a

17 water right in which that water system has or is proposed to have

18 an ownership interest.

19 Sec. 10. RCW 90.80.140 and 1997 c 441 s 18 are each amended to

20 read as follows:

21 Nothing in this chapter affects transfers that may be otherwise

22 approved under chapter 90.03 or 90.44 RCW.

23 NEW SECTION. Sec. 11. A new section is added to chapter 90.66

24 RCW to read as follows:

25 (1) Transfers of water rights established under the authority

26 of family farm permits may be approved as authorized under this

27 section and under RCW 90.03.380, 90.03.390, or 90.44.100 as

28 appropriate.

29 (2) A water right established under the authority of a family

30 farm permit may be transferred:

31 (a) For use for agricultural irrigation purposes as limited by

32 RCW 90.66.060 (1) and (2) except as provided in RCW 90.66.060(3);

33 (b) To any purpose of use that is a beneficial use of water if

34 the transfer is made exclusively under a lease agreement, except

35 that transfers for the use of water for agricultural irrigation

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_1 purposes shall be limited as provided by RCW 90.66.060 (1) and

_2 (2);

_3 (c) To any purpose of use that is a beneficial use of water if

_4 the water right is for the use of water at a location that is,

_5 immediately before the transfer is approved, within the boundaries

_6 of a city or town or within the boundaries of an urban growth area

_7 designated under chapter 36.70A RCW, except that transfers for the

_8 use of water for agricultural irrigation purposes shall be limited

_9 as provided by RCW 90.66.060 (1) and (2).

10 (3) If a portion of the water governed by a water right

11 established under the authority of a family farm permit is made

12 surplus to the beneficial uses exercised under the right through

13 the implementation of practices or technologies, including but not

14 limited to conveyance practices or technologies, which are more

15 efficient or more water-use efficient than those under which the

16 right was perfected, the right to use the surplus water may be

17 transferred to any purpose of use that is a beneficial use of

18 water. Nothing in this subsection authorizes: A transfer of the

19 portion of a water right that is necessary for the production of

20 crops historically grown under the right; or a transfer of a water

21 right or a portion of a water right that has not been perfected

22 through beneficial use before the transfer.

23 (4) The authority granted by this section to transfer or alter

24 the purpose of use of a water right established under the

25 authority of a family farm permit shall not be construed as

26 limiting in any manner the authority granted by RCW 90.03.380,

27 90.03.390, or 90.44.100 to alter other elements of such a water

28 right.

29 Sec. 12. RCW 90.66.040 and 1979 c 3 s 4 are each amended to read as

30 follows:

31 For the purposes of this chapter, the following definitions

32 shall be applicable:

33 (1) "Family farm" means a geographic area including not more

34 than two thousand acres of irrigated agricultural lands, whether

35 contiguous or noncontiguous, the controlling interest in which is

36 held by a person having a controlling interest in no more than two

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_1 thousand acres of irrigated agricultural lands in the state of

_2 Washington which are irrigated under rights acquired after

_3 December 8, 1977.

_4 (2) "Person" means any individual, corporation, partnership,

_5 limited partnership, organization, or other entity whatsoever,

_6 whether public or private. The term "person" shall include as one

_7 person all corporate or partnership entities with a common

_8 ownership of more than one-half of the assets of each of any

_9 number of such entities.

10 (3) "Controlling interest" means a property interest that can

11 be transferred to another person, the percentage interest so

12 transferred being sufficient to effect a change in control of the

13 landlord's rights and benefits. Ownership of property held in trust

14 shall not be deemed a controlling interest where no part of the

15 trust has been established through expenditure or assignment of

16 assets of the beneficiary of the trust and where the rights of the

17 family farm permit which is a part of the trust cannot be

18 transferred to another by the beneficiary of the trust under terms

19 of the trust. Each trust of a separate donor origin shall be

20 treated as a separate entity and the administration of property

21 under trust shall not represent a controlling interest on the part

22 of the trust officer.

23 (4) "Department" means the department of ecology of the state

24 of Washington.

25 (5) "Application", "permit" and "public waters" shall have the

26 meanings attributed to these terms in chapters 90.03 and 90.44

27 RCW.

28 (6) "Public water entity" means any public or governmental

29 entity with authority to administer and operate a system to supply

30 water for irrigation of agricultural lands.

31 (7) "Transfer" means a transfer, change, or amendment to a

32 water right referred to in RCW 90.03.380, 90.03.390, or 90.44.100.

33 (8) "Withdraw" means to withdraw ground water or to divert

34 surface water.

35 Sec. 13. RCW 90.66.060 and 1979 c 3 s 6 are each amended to read as

36 follows:

37 (1) Except as provided in subsections (2) and (3) of this

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_1 section, the right to withdraw water for use for the irrigation of

_2 agricultural lands under authority of a family farm permit shall

_3 have no time limit ((~~but~~)) and shall be conditioned upon the land

_4 being irrigated complying with the definition of a family farm as

_5 defined at the time the permit is issued((~~: PROVIDED, HOWEVER,~~

_6 ~~That~~)).

_7 (2) If the acquisition by any person of land and water rights

_8 by gift, devise, bequest, or by way of bona fide satisfaction of a

_9 debt, would otherwise cause land being irrigated pursuant to a

10 family farm permit to lose its status as a family farm, such

11 acquisition shall be deemed to have no effect upon the status of

12 family farm water permits pertaining to land held or acquired by

13 the person acquiring such land and water rights if all lands held

14 or acquired are again in compliance with the definition of a

15 family farm within five years from the date of such acquisition.

16 ((~~(2)~~)) If the department determines that water is being

17 withdrawn under a family farm permit for use on land not in

18 conformity with the definition of a family farm, the department

19 shall notify the holder of such family farm permit by personal

20 service of such fact and the permit shall be suspended two years

21 from the date of receipt of notice unless the person having a

22 controlling interest in said land satisfies the department that

23 such land is again in conformity with the definition of a family

24 farm. The department may, upon a showing of good cause and

25 reasonable effort to attain compliance on the part of the person

26 having the controlling interest in such land, extend the two year

27 period prior to suspension. If conformity is not achieved prior to

28 five years from the date of notice the rights of withdrawal shall

29 be canceled.

30 (3) This section does not apply in any manner whatsoever to a

31 transfer of surplus water authorized by section 11(3) of this act;

32 however, this section does apply to other transfers of a water

33 right established under the authority of a family farm permit to

34 the extent that the transfer is to a use of water for agricultural

35 irrigation purposes.

36 NEW SECTION. Sec. 14. Sections 1 through 3 of this act are

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_1 necessary for the immediate preservation of the public peace,

_2 health, or safety, or support of the state government and its

_3 existing public institutions, and take effect immediately.

‑‑‑ END ‑‑‑

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