BILL REQ. #:  S-2046.2 

READ FIRST TIME 02/25/09.   

     AN ACT Relating to improving water management through filing notice of foregone water use and establishing a monitoring system; amending RCW 90.42.130; adding a new section to chapter 90.42 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 90.42 RCW to read as follows:
     (1) The legislature finds that on a seasonal or longer term basis, a water right holder or claimant may not need to divert or withdraw any or a part of the water allowable under the right or claim, but may be uncertain whether foregoing the use or a portion of the use for a season or successive seasons may cause the right or a portion of the right to relinquish. It is the intent of this section to provide a streamlined procedure to allow a water right holder to notify the state of the water right holder's intent to forego water use without that period of nonuse counting toward relinquishment of the right and with the forgone water benefitting instream flows.
     (2) A person entitled to divert or withdraw waters of the state may elect to forego water use or a portion thereof without the period of nonuse being included within the five-year period of nonuse constituting relinquishment under RCW 90.14.160, 90.14.170, or 90.14.180, when the person provides prior written notice to the department regarding reduced use.
     (3)(a) Notice under this section must include:
     (i) Information regarding the ownership of the rights, including the identifying numbers of pertinent permits, certificates, or previously filed water right claims;
     (ii) A description of each water right or claim, including the land area to which it is appurtenant, the purpose of use, the location of the point of diversion or withdrawal, and the instantaneous quantity and annual quantity allowed;
     (iii) The period of time during which it is anticipated that use will be foregone, if known;
     (iv) An estimate of the quantity of water use that has been and will be foregone, including both the total quantity in acre-feet per year and the instantaneous diversion or withdrawal rate in cubic feet per second or gallons per minute; and
     (v) An estimate of reduced irrigated acres, if applicable.
     (b) The anticipated period of future foregone use identified in (a)(iii) of this subsection is not binding on the water right holder and the notice of foregone use remains in effect until the water right holder files a notice of amendment or revocation under subsection (6) of this section.
     (4) The department shall, through guidelines, establish the forms of notification necessary to implement this section.
     (5) When the department receives a notice of foregone water use, the foregone water is deemed to be a temporary trust water right under this chapter.
     (6) The water right holder or claimant must maintain their diversion and conveyance facilities in good working order and capable of diverting and conveying the full quantity of the right while the water is foregone.
     (7) The water right holder or claimant may revoke or amend the election to forego water use at any time by submitting a notice in writing to the department. Upon receipt of such a notice, the accumulation of time during which nonuse of water may constitute relinquishment must be resumed if the water right holder or claimant does not immediately resume the use of the water.
     (8) During the period of foregone use of a water right, the water represented by the consumptive use portion of the right must be managed, to the extent practicable, by the department for the maintenance and enhancement of stream flows and to preserve or restore aquifer conditions.
     (9) The department shall make a record of all notices of election to forego water use and notices to amend or revoke such an election that are received under this section and shall append the notices to the water right and claim files associated with the notices. There is no fee for filing and recording a notice under this section.
     (10) The person who files a notice of foregone water use under this section shall notify the department in writing of any changes in contact information.
     (11) The department shall provide notice annually to a water right holder or claimant who has filed a notice of foregone water that is still in operation. The water right holder or claimant must provide updated notice if he or she would like to change any information contained in the existing notice of foregone water use.
     (12) The department may invalidate a notice of foregone water use for good cause including, but not limited to, situations in which the water right holder or claimant is not acting in good faith, if the water right holder or claimant is acting fraudulently, or in situations in which the foregone water use is not bona fide.

Sec. 2   RCW 90.42.130 and 2003 c 144 s 5 are each amended to read as follows:
     (1) The department shall seek input from agricultural organizations, federal agencies, tribal governments, local governments, watershed groups, conservation groups, and developers on ((water banking)) the trust water rights program, including water banking ((procedures)) activities and identification of areas in Washington state where water banking could assist in providing water supplies for instream and out-of-stream uses. The department shall summarize any comments received on ((water banking)) the trust water rights program and submit a report, including any recommendations, to the appropriate committees of the legislature for their consideration in the subsequent legislative session.
     (2) By December 31st of every even-numbered year, the department shall submit a report to the appropriate committees of the legislature on ((water banking activities)) the trust water rights program authorized under RCW 90.42.100. The report shall:
     (a) Evaluate the effectiveness of ((water banking)) the trust water rights program in meeting the policies and objectives of this chapter;
     (b) Describe any statutory, regulatory, or other impediments to water banking in other areas of the state; and
     (c) Identify other basins or regions that may benefit from authorization for the department to use the trust water (([rights])) rights program for water banking purposes.
     (3) The department shall also include in the report on the trust water rights program the number of notices received under section 1 of this act, how much water the notices involve, the geographic locations affected by the notices, and the impacts on streams.

NEW SECTION.  Sec. 3   (1) By June 30, 2010, the department of ecology shall prepare a data gap analysis that evaluates existing groundwater and surface water information on water levels and water quality within each water resource inventory area of the state. The analysis must include:
     (a) A summary of historic and current monitoring of ambient groundwater and surface water levels and water quality across the state;
     (b) An evaluation of the completeness and quality of the data and conclusions produced from such monitoring;
     (c) An identification of basins where water quantity levels are of concern but no monitoring is being conducted;
     (d) An evaluation and recommendations for quality controls and other protocols associated with data collection and management;
     (e) A compilation and summary of existing studies of groundwater and surface water levels, water quality, and monitoring activities; and
     (f) Recommendations on the components necessary to establish a comprehensive, statewide ambient groundwater and surface water monitoring and assessment program and the funding necessary to implement the program.
     (2) The department of ecology must submit the data gap analysis to the relevant policy committees of the senate and house of representatives.