BILL REQ. #:  H-3869.1 

Read first time 01/15/2004.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to water policy in regions with regulated reductions in aquifer levels; amending RCW 90.44.445; reenacting and amending RCW 90.14.140; and adding new sections to chapter 89.12 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 89.12 RCW to read as follows:
     (1) The legislature finds that conserved water from the developed portions of the federal Columbia basin project can provide an immediate source of surface water to offset a limited portion of ground water depletions within the undeveloped portions of the federal project extending the availability of ground water for domestic, municipal, industrial, and agricultural uses. The department of ecology has adopted rules establishing the Odessa ground water management subarea and a management policy for the area in chapters 173-128A and 173-130A WAC, respectively. A majority of the land within the subarea lies within the federal Columbia basin project. A primary purpose of the rules was to manage ground water depletions that are occurring as a result of the department's decision to allow continued deep well agricultural irrigation in anticipation that development of the federal Columbia basin project would continue at its historic pace and that project water would replace ground water and recharge the depleted aquifer.
     (2) The legislature also finds that recent studies have documented water conservation in areas served by project irrigation districts as a result of distribution system lining and piping and use of more efficient conveyance system technology.

NEW SECTION.  Sec. 2   A new section is added to chapter 89.12 RCW to read as follows:
     It is the intent of the legislature that the department of ecology enter into agreements with the United States and Columbia basin project irrigation districts regarding the allocation of water conserved from within areas currently served by project waters to deep well irrigated lands within the federal Columbia basin project and for other authorized project beneficial uses. The department may provide the irrigation districts data identifying areas with the most serious ground water depletions. The irrigation districts shall consider and may rely on the department's data and recommendations in making allocation decisions to offset groundwater withdrawals consistent with the operational constraints of the distribution system.

Sec. 3   RCW 90.14.140 and 2001 c 240 s 1, 2001 c 237 s 27, and 2001 c 69 s 5 are each reenacted and amended to read as follows:
     (1) For the purposes of RCW 90.14.130 through 90.14.180, "sufficient cause" shall be defined as the nonuse of all or a portion of the water by the owner of a water right for a period of five or more consecutive years where such nonuse occurs as a result of:
     (a) Drought, or other unavailability of water;
     (b) Active service in the armed forces of the United States during military crisis;
     (c) Nonvoluntary service in the armed forces of the United States;
     (d) The operation of legal proceedings;
     (e) Federal or state agency leases of or options to purchase lands or water rights which preclude or reduce the use of the right by the owner of the water right;
     (f) Federal laws imposing land or water use restrictions either directly or through the voluntary enrollment of a landowner in a federal program implementing those laws, or acreage limitations, or production quotas;
     (g) Temporarily reduced water need for irrigation use where such reduction is due to varying weather conditions, including but not limited to precipitation and temperature, that warranted the reduction in water use, so 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;
     (h) Temporarily reduced diversions or withdrawals of irrigation water directly resulting from the provisions of a contract or similar agreement in which a supplier of electricity buys back electricity from the water right holder and the electricity is needed for the diversion or withdrawal or for the use of the water diverted or withdrawn for irrigation purposes;
     (i) Reduced withdrawals of ground water under a water right if the source of the water for the right is an aquifer for which the department has adopted rules establishing a ground water subarea management policy that specifies an authorized rate of decline in the spring static water level of the aquifer. If water from a federal irrigation project is delivered for use by a person who holds such a ground water right, the provisions of this subsection (1)(i) apply to reduced withdrawals under the ground water right only if: The delivery is designed to reduce the rate of decline in the static water level of the aquifer; and the total number of acres irrigated by the person under the ground water right and through the use of water delivered from the federal project does not exceed the number of acres authorized to be irrigated under the person's water right permit or certificate for the use of water from the aquifer;
     (j) Water conservation measures implemented under the Yakima river basin water enhancement project, so long as the conserved water is reallocated in accordance with the provisions of P.L. 103-434;
     (((j))) (k) Reliance by an irrigation water user on the transitory presence of return flows in lieu of diversion or withdrawal of water from the primary source of supply, if such return flows are measured or reliably estimated using a scientific methodology generally accepted as reliable within the scientific community; or
     (((k))) (l) The reduced use of irrigation water resulting from crop rotation. For purposes of this subsection, crop rotation means the temporary change in the type of crops grown resulting from the exercise of generally recognized sound farming practices. Unused water resulting from crop rotation will not be relinquished if the remaining portion of the water continues to be beneficially used.
     (2) Notwithstanding any other provisions of RCW 90.14.130 through 90.14.180, there shall be no relinquishment of any water right:
     (a) If such right is claimed for power development purposes under chapter 90.16 RCW and annual license fees are paid in accordance with chapter 90.16 RCW;
     (b) If such right is used for a standby or reserve water supply to be used in time of drought or other low flow period so long as withdrawal or diversion facilities are maintained in good operating condition for the use of such reserve or standby water supply;
     (c) If such right is claimed for a determined future development to take place either within fifteen years of July 1, 1967, or the most recent beneficial use of the water right, whichever date is later;
     (d) If such right is claimed for municipal water supply purposes under chapter 90.03 RCW;
     (e) If such waters are not subject to appropriation under the applicable provisions of RCW 90.40.030;
     (f) If such right or portion of the right is leased to another person for use on land other than the land to which the right is appurtenant as long as the lessee makes beneficial use of the right in accordance with this chapter and a transfer or change of the right has been approved by the department in accordance with RCW 90.03.380, 90.03.383, 90.03.390, or 90.44.100;
     (g) If such a right or portion of the right is authorized for a purpose that is satisfied by the use of agricultural industrial process water as authorized under RCW 90.46.150; or
     (h) If such right is a trust water right under chapter 90.38 or 90.42 RCW.
     (3) In adding provisions to this section by chapter 237, Laws of 2001, the legislature does not intend to imply legislative approval or disapproval of any existing administrative policy regarding, or any existing administrative or judicial interpretation of, the provisions of this section not expressly added or revised.

Sec. 4   RCW 90.44.445 and 1993 c 99 s 1 are each amended to read as follows:
     (1) In any acreage expansion program adopted by the department as an element of a ground water management program, the authorization for a water right certificate holder to participate in the program shall be on an annual basis for the first two years. After the two-year period, the department may authorize participation for ten-year periods. The department may authorize participation for ten-year periods for certificate holders who have already participated in an acreage expansion program for two years. The department may require annual certification that the certificate holder has complied with all requirements of the program. The department may terminate the authority of a certificate holder to participate in the program for one calendar year if the certificate holder fails to comply with the requirements of the program.
     (2) Where the source of water for a ground water right is an aquifer for which the department has adopted rules establishing a ground water subarea management policy that specifies an authorized rate of decline in the spring static water level of the aquifer and water from a federal irrigation project is delivered for use by a person who holds such a ground water right: The delivery of the water from the federal project must be designed to reduce the rate of decline in the static water level of the aquifer; and the total number of acres irrigated by the person under the ground water right and through the use of water delivered from the federal project must not exceed the number of acres authorized to be irrigated under the person's water right permit or certificate for the use of water from the aquifer.