BILL REQ. #:  S-0122.1 

Read first time 01/13/2003.   Referred to Committee on Natural Resources, Energy & Water.

     AN ACT Relating to water right relinquishment; amending RCW 43.21B.110, 90.14.010, 90.38.040, and 90.42.040; and repealing RCW 90.14.130, 90.14.140, 90.14.150, 90.14.160, 90.14.170, 90.14.180, 90.14.190, 90.14.200, 90.14.210, and 90.14.215.

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

Sec. 1   RCW 43.21B.110 and 2001 c 220 s 2 are each amended to read as follows:
     (1) The hearings board shall only have jurisdiction to hear and decide appeals from the following decisions of the department, the director, local conservation districts, and the air pollution control boards or authorities as established pursuant to chapter 70.94 RCW, or local health departments:
     (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431, 70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and 90.56.330.
     (b) Orders issued pursuant to RCW 18.104.043, 18.104.060, 43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070, ((90.14.130,)) 90.48.120, and 90.56.330.
     (c) Except as provided in RCW 90.03.210(2), the issuance, modification, or termination of any permit, certificate, or license by the department or any air authority in the exercise of its jurisdiction, including the issuance or termination of a waste disposal permit, the denial of an application for a waste disposal permit, the modification of the conditions or the terms of a waste disposal permit, or a decision to approve or deny an application for a solid waste permit exemption under RCW 70.95.300.
     (d) Decisions of local health departments regarding the grant or denial of solid waste permits pursuant to chapter 70.95 RCW.
     (e) Decisions of local health departments regarding the issuance and enforcement of permits to use or dispose of biosolids under RCW 70.95J.080.
     (f) Decisions of the department regarding waste-derived fertilizer or micronutrient fertilizer under RCW 15.54.820, and decisions of the department regarding waste-derived soil amendments under RCW 70.95.205.
     (g) Decisions of local conservation districts related to the denial of approval or denial of certification of a dairy nutrient management plan; conditions contained in a plan; application of any dairy nutrient management practices, standards, methods, and technologies to a particular dairy farm; and failure to adhere to the plan review and approval timelines in RCW 90.64.026.
     (h) Any other decision by the department or an air authority which pursuant to law must be decided as an adjudicative proceeding under chapter 34.05 RCW.
     (2) The following hearings shall not be conducted by the hearings board:
     (a) Hearings required by law to be conducted by the shorelines hearings board pursuant to chapter 90.58 RCW.
     (b) Hearings conducted by the department pursuant to RCW 70.94.332, 70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
     (c) Proceedings conducted by the department, or the department's designee, under RCW 90.03.160 through 90.03.210 or 90.44.220.
     (d) Hearings conducted by the department to adopt, modify, or repeal rules.
     (3) Review of rules and regulations adopted by the hearings board shall be subject to review in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW.

Sec. 2   RCW 90.14.010 and 1967 c 233 s 1 are each amended to read as follows:
     The future growth and development of the state is dependent upon effective management and efficient use of the state's water resources. The purpose of this chapter is to provide adequate records for efficient administration of the state's waters((, and to cause a return to the state of any water rights which are no longer exercised by putting said waters to beneficial use)).

Sec. 3   RCW 90.38.040 and 2001 c 237 s 29 are each amended to read as follows:
     (1) All trust water rights acquired by the department shall be placed in the Yakima river basin trust water rights program to be managed by the department. The department shall issue a water right certificate in the name of the state of Washington for each trust water right it acquires.
     (2) Trust water rights shall retain the same priority date as the water right from which they originated. Trust water rights may be modified as to purpose or place of use or point of diversion, including modification from a diversionary use to a nondiversionary instream use.
     (3) Trust water rights may be held by the department for instream flows, irrigation use, or other beneficial use. Trust water rights may be acquired on a temporary or permanent basis. To the extent practicable and subject to legislative appropriation, trust water rights acquired in an area with an approved watershed plan developed under chapter 90.82 RCW shall be consistent with that plan if the plan calls for such acquisition.
     (4) A schedule of the amount of net water saved as a result of water conservation projects carried out in accordance with this chapter, shall be developed annually to reflect the predicted hydrologic and water supply conditions, as well as anticipated water demands, for the upcoming irrigation season. This schedule shall serve as the basis for the distribution and management of trust water rights each year.
     (5)(a) No exercise of a trust water right may be authorized unless the department first determines that no existing water rights, junior or senior in priority, will be impaired as to their exercise or injured in any manner whatever by such authorization.
     (b) Before any trust water right is exercised, the department shall publish notice thereof in a newspaper of general circulation published in the county or counties in which the storage, diversion, and use are to be made, and in such other newspapers as the department determines are necessary, once a week for two consecutive weeks. At the same time the department may also send notice thereof containing pertinent information to the director of fish and wildlife.
     (c) Subsections (4) and (5)(b) of this section do not apply to a trust water right resulting from a donation for instream flows described in RCW 90.38.020(1)(b) or from the lease of a water right under RCW 90.38.020(6) if the period of the lease does not exceed five years. However, the department shall provide the notice described in (b) of this subsection the first time the trust water right resulting from the donation is exercised.
     (6) RCW 90.03.380 ((and 90.14.140 through 90.14.910)) shall have no applicability to trust water rights held by the department under this chapter or exercised under this section.

Sec. 4   RCW 90.42.040 and 2002 c 329 s 8 are each amended to read as follows:
     (1) All trust water rights acquired by the state shall be placed in the state trust water rights program to be managed by the department. Trust water rights acquired by the state shall be held or authorized for use by the department for instream flows, irrigation, municipal, or other beneficial uses consistent with applicable regional plans for pilot planning areas, or to resolve critical water supply problems. To the extent practicable and subject to legislative appropriation, trust water rights acquired in an area with an approved watershed plan developed under chapter 90.82 RCW shall be consistent with that plan if the plan calls for such acquisition.
     (2) The department shall issue a water right certificate in the name of the state of Washington for each permanent trust water right conveyed to the state indicating the reach or reaches of the stream, the quantity, and the use or uses to which it may be applied. A superseding certificate shall be issued that specifies the amount of water the water right holder would continue to be entitled to as a result of the water conservation project. The superseding certificate shall retain the same priority date as the original right. For nonpermanent conveyances, the department shall issue certificates or such other instruments as are necessary to reflect the changes in purpose or place of use or point of diversion or withdrawal.
     (3) A trust water right retains the same priority date as the water right from which it originated, but as between them the trust right shall be deemed to be inferior in priority unless otherwise specified by an agreement between the state and the party holding the original right.
     (4) Exercise of a trust water right may be authorized only if the department first determines that neither water rights existing at the time the trust water right is established, nor the public interest will be impaired. If impairment becomes apparent during the time a trust water right is being exercised, the department shall cease or modify the use of the trust water right to eliminate the impairment.
     (5) Before any trust water right is created or modified, the department shall, at a minimum, require that a notice be published in a newspaper of general circulation published in the county or counties in which the storage, diversion, and use are to be made, and in other newspapers as the department determines is necessary, once a week for two consecutive weeks. At the same time the department shall send a notice containing pertinent information to all appropriate state agencies, potentially affected local governments and federally recognized tribal governments, and other interested parties.
     (6) ((RCW 90.14.140 through 90.14.230 have no applicability to trust water rights held by the department under this chapter or exercised under this section.
     (7))) RCW 90.03.380 has no applicability to trust water rights acquired by the state through the funding of water conservation projects.
     (((8))) (7) Subsections (4) and (5) of this section do not apply to a trust water right resulting from a donation for instream flows described in RCW 90.42.080(1)(b) or to a trust water right leased under RCW 90.42.080(8) if the period of the lease does not exceed five years. However, the department shall provide the notice described in subsection (5) of this section the first time the trust water right resulting from the donation is exercised.
     (((9))) (8) Where a portion of an existing water right that is acquired or donated to the trust water rights program will assist in achieving established instream flows, the department shall process the change or amendment of the existing right without conducting a review of the extent and validity of the portion of the water right that will remain with the water right holder.

NEW SECTION.  Sec. 5   The following acts or parts of acts are each repealed:
     (1) RCW 90.14.130 (Reversion of rights to state due to nonuse--Notice by order -- Relinquishment determinations -- Appeal) and 1987 c 109 s 13 & 1967 c 233 s 13;
     (2) RCW 90.14.140 ("Sufficient cause" for nonuse defined -- Rights exempted) and 2001 c 240 s 1, 2001 c 237 s 27, 2001 c 69 s 5, 1998 c 258 s 1, 1987 c 125 s 1, & 1967 c 233 s 14;
     (3) RCW 90.14.150 (Rights arising from permit to withdraw public waters not affected -- Extensions) and 1987 c 109 s 100 & 1967 c 233 s 15;
     (4) RCW 90.14.160 (Relinquishment of right for abandonment or failure to beneficially use without sufficient cause -- Prior rights acquired through appropriation, custom or general adjudication) and 1981 c 291 s 1, 1979 ex.s. c 216 s 5, & 1967 c 233 s 16;
     (5) RCW 90.14.170 (Relinquishment of right for abandonment or failure to beneficially use without sufficient cause -- Rights acquired due to ownership of land abutting stream, lake, or watercourse) and 1967 c 233 s 17;
     (6) RCW 90.14.180 (Relinquishment of right for abandonment or failure to beneficially use without sufficient cause -- Future rights acquired through appropriation) and 1987 c 109 s 101 & 1967 c 233 s 18;
     (7) RCW 90.14.190 (Water resources decisions -- Appeals -- Attorneys' fees) and 1987 c 109 s 14 & 1967 c 233 s 19;
     (8) RCW 90.14.200 (Implementation and enforcement of chapter--Proceedings under RCW 90.14.130 deemed adjudicative -- Application of RCW sections to specific proceedings) and 1989 c 175 s 180, 1979 ex.s. c 216 s 6, & 1967 c 233 s 20;
     (9) RCW 90.14.210 (Chapter applies to all rights to withdraw ground waters) and 1967 c 233 s 21; and
     (10) RCW 90.14.215 (Chapter not applicable to trust water rights under chapter 90.38 or 90.42 RCW) and 1991 c 347 s 14.