BILL REQ. #: H-0481.2
| State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/12/11. Referred to Committee on Agriculture & Natural Resources.
AN ACT Relating to the relinquishment of water rights; amending RCW 90.03.380, 90.03.615, 90.14.010, 90.38.040, 90.42.040, 90.42.080, 90.44.510, 90.44.520, 90.92.070, and 90.92.120; reenacting and amending RCW 43.21B.110 and 43.21B.110; adding a new section to chapter 90.14 RCW; creating a new section; repealing RCW 90.14.130, 90.14.140, 90.14.160, 90.14.170, 90.14.180, 90.14.190, and 90.14.200; providing an effective date; and providing expiration dates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 Relinquishment is a statutory provision to
terminate water rights if they are not used continuously within a
prescribed period of time. The legislature recognizes that one of the
unintended consequences of the relinquishment statute is to cause water
right holders to use the full amount of their water right when they may
have been inclined to conserve or not use water in order to keep from
losing the right to the use of their water in the future. The
legislature intends to abolish relinquishment by removing all
references to relinquishment in the Revised Code of Washington. In
abolishing relinquishment, the legislature intends to rely solely on
the common law doctrine of abandonment.
Sec. 2 RCW 43.21B.110 and 2010 c 210 s 7 and 2010 c 84 s 2 are
each reenacted and 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, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, and the parks and recreation
commission:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, 88.46.090,
90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.
(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,)) 90.46.250, 90.48.120, and 90.56.330.
(c) A final decision by the department or director made under
chapter 183, Laws of 2009.
(d) 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.
(e) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(f) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(g) 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.
(h) 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.
(i) 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.
(j) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(k) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(l) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW.
(m) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(n) Decisions of a state agency that is an authorized public entity
under RCW 79.100.010 to take temporary possession or custody of a
vessel or to contest the amount of reimbursement owed that are
reviewable under RCW 79.100.120.
(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) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(((e) Appeals of decisions by the department as provided in chapter
43.21L RCW.))
(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. 3 RCW 43.21B.110 and 2010 c 210 s 8 and 2010 c 84 s 3 are
each reenacted and 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, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, and the parks and recreation
commission:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 76.09.170, 77.55.291, 78.44.250, 88.46.090,
90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and 90.64.102.
(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,)) 90.46.250, 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.
(i) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(j) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(k) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW.
(l) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(m) Decisions of a state agency that is an authorized public entity
under RCW 79.100.010 to take temporary possession or custody of a
vessel or to contest the amount of reimbursement owed that are
reviewable under RCW 79.100.120.
(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) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(((e) Appeals of decisions by the department as provided in chapter
43.21L RCW.))
(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. 4 RCW 90.03.380 and 2009 c 183 s 15 are each amended to read
as follows:
(1) The right to the use of water which has been applied to a
beneficial use in the state shall be and remain appurtenant to the land
or place upon which the same is used: PROVIDED, HOWEVER, That the
right may be transferred to another or to others and become appurtenant
to any other land or place of use without loss of priority of right
theretofore established if such change can be made without detriment or
injury to existing rights. The point of diversion of water for
beneficial use or the purpose of use may be changed, if such change can
be made without detriment or injury to existing rights. A change in
the place of use, point of diversion, and/or purpose of use of a water
right to enable irrigation of additional acreage or the addition of new
uses may be permitted if such change results in no increase in the
annual consumptive quantity of water used under the water right. For
purposes of this section, "annual consumptive quantity" means the
estimated or actual annual amount of water diverted pursuant to the
water right, reduced by the estimated annual amount of return flows,
averaged over the two years of greatest use within the most recent
five-year period of continuous beneficial use of the water right.
Before any transfer of such right to use water or change of the point
of diversion of water or change of purpose of use can be made, any
person having an interest in the transfer or change, shall file a
written application therefor with the department, and the application
shall not be granted until notice of the application is published as
provided in RCW 90.03.280. If it shall appear that such transfer or
such change may be made without injury or detriment to existing rights,
the department shall issue to the applicant a certificate in duplicate
granting the right for such transfer or for such change of point of
diversion or of use. The certificate so issued shall be filed and be
made a record with the department and the duplicate certificate issued
to the applicant may be filed with the county auditor in like manner
and with the same effect as provided in the original certificate or
permit to divert water. The time period that the water right was
banked under RCW 90.92.070, in an approved local water plan created
under RCW 90.92.090, or the water right was subject to an agreement to
not divert under RCW 90.92.050 will not be included in the most recent
five-year period of continuous beneficial use for the purpose of
determining the annual consumptive quantity under this section. ((If
the water right has not been used during the previous five years but
the nonuse of which qualifies for one or more of the statutory good
causes or exceptions to relinquishment in RCW 90.14.140 and 90.44.520,
the period of nonuse is not included in the most recent five-year
period of continuous beneficial use for purposes of determining the
annual consumptive quantity of water under this section.))
(2) If an application for change proposes to transfer water rights
from one irrigation district to another, the department shall, before
publication of notice, receive concurrence from each of the irrigation
districts that such transfer or change will not adversely affect the
ability to deliver water to other landowners or impair the financial
integrity of either of the districts.
(3) A change in place of use by an individual water user or users
of water provided by an irrigation district need only receive approval
for the change from the board of directors of the district if the use
of water continues within the irrigation district, and when water is
provided by an irrigation entity that is a member of a board of joint
control created under chapter 87.80 RCW, approval need only be received
from the board of joint control if the use of water continues within
the area of jurisdiction of the joint board and the change can be made
without detriment or injury to existing rights.
(4) This section shall not apply to trust water rights acquired by
the state through the funding of water conservation projects under
chapter 90.38 RCW or RCW 90.42.010 through 90.42.070.
(5)(a) Pending applications for new water rights are not entitled
to protection from impairment, injury, or detriment when an application
relating to an existing surface or ground water right is considered.
(b) Applications relating to existing surface or ground water
rights may be processed and decisions on them rendered independently of
processing and rendering decisions on pending applications for new
water rights within the same source of supply without regard to the
date of filing of the pending applications for new water rights.
(c) Notwithstanding any other existing authority to process
applications, including but not limited to the authority to process
applications under WAC 173-152-050 as it existed on January 1, 2001, an
application relating to an existing surface or ground water right may
be processed ahead of a previously filed application relating to an
existing right when sufficient information for a decision on the
previously filed application is not available and the applicant for the
previously filed application is sent written notice that explains what
information is not available and informs the applicant that processing
of the next application will begin. The previously filed application
does not lose its priority date and if the information is provided by
the applicant within sixty days, the previously filed application shall
be processed at that time. This subsection (5)(c) does not affect any
other existing authority to process applications.
(d) Nothing in this subsection (5) is intended to stop the
processing of applications for new water rights.
(6) No applicant for a change, transfer, or amendment of a water
right may be required to give up any part of the applicant's valid
water right or claim to a state agency, the trust water rights program,
or to other persons as a condition of processing the application.
(7) In revising the provisions of this section and 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.
(8) The development and use of a small irrigation impoundment, as
defined in RCW 90.03.370(8), does not constitute a change or amendment
for the purposes of this section. The exemption expressly provided by
this subsection shall not be construed as requiring a change or
transfer of any existing water right to enable the holder of the right
to store water governed by the right.
(9) This section does not apply to a water right involved in an
approved local water plan created under RCW 90.92.090, a water right
that is subject to an agreement not to divert under RCW 90.92.050, or
a banked water right under RCW 90.92.070.
Sec. 5 RCW 90.03.615 and 2009 c 283 s 7 are each amended to read
as follows:
For purposes of calculating annual consumptive quantity as defined
under RCW 90.03.380(1), if, within the most recent five-year period,
the water right has been in the trust water rights program under
chapter 90.38 or 90.42 RCW, ((or the nonuse of the water right has been
excused from relinquishment under RCW 90.14.140,)) the department shall
look to the most recent five-year period of continuous beneficial use
preceding the date where the excuse for nonuse ((under RCW 90.14.140))
was established and remained in effect.
Sec. 6 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. 7 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))
has no applicability to trust water rights held by the department under
this chapter or exercised under this section.
Sec. 8 RCW 90.42.040 and 2009 c 283 s 4 are each amended to read
as follows:
(1) A trust water right acquired by the state shall be placed in
the state trust water rights program to be managed by the department.
The department shall exercise its authorities under the law in a manner
that protects trust water rights. Trust water rights acquired by the
state shall be held in trust and 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. The state may acquire a
groundwater right to be placed in the state trust water rights program.
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 quantity of water transferred to
trust, the reach or reaches of the stream or the body of public
groundwater that constitutes the place of use of the trust water right,
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 the two rights, 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)(a) 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.
(b) 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.
(c) A trust water right acquired by the state and held or
authorized for beneficial use by the department is considered to be
exercised as long as it is in the trust water rights program.
(d) For the purposes of RCW 90.03.380(1) and 90.42.080(9), the
consumptive quantity of a trust water right acquired by the state and
held or authorized for use by the department is equal to the
consumptive quantity of the right prior to transfer into the trust
water rights program.
(5)(a) 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.
(b) 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.
(c) For a trust water right donation described in RCW
90.42.080(1)(b), or for a trust water right lease described in RCW
90.42.080(8) that does not exceed five years, the department may post
equivalent information on its web site to meet the notice requirements
in (a) of this subsection and may send pertinent information by e-mail
to meet the notice requirements in (b) of this subsection.
(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.)) RCW 90.03.380 has no applicability to trust water rights
acquired by the state through the funding of water conservation
projects.
(7)
(((8))) (7) Subsection (4)(a) of this section does 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.
(((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.
Sec. 9 RCW 90.42.080 and 2009 c 283 s 5 are each amended to read
as follows:
(1)(a) The state may acquire all or portions of existing surface
water or groundwater rights, by purchase, gift, or other appropriate
means other than by condemnation, from any person or entity or
combination of persons or entities. Once acquired, such rights are
trust water rights. A water right acquired by the state that is
expressly conditioned to limit its use to instream purposes shall be
administered as a trust water right in compliance with that condition.
(b) If the holder of a right to surface water or groundwater
chooses to donate all or a portion of the person's water right to the
trust water system to assist in providing instream flows or to preserve
surface water or groundwater resources on a temporary or permanent
basis, the department shall accept the donation on such terms as the
person may prescribe as long as the donation satisfies the requirements
of subsection (4) of this section and the other applicable requirements
of this chapter and the terms prescribed are relevant and material to
protecting any interest in the water right retained by the donor. Once
accepted, such rights are trust water rights within the conditions
prescribed by the donor.
(2) The department may enter into leases, contracts, or such other
arrangements with other persons or entities as appropriate, to ensure
that trust water rights acquired in accordance with this chapter may be
exercised to the fullest possible extent.
(3) Trust water rights may be acquired by the state on a temporary
or permanent basis.
(4) ((Except as provided in subsections (10) and (11) of this
section,)) A water right donated under subsection (1)(b) of this
section shall not exceed the extent to which the water right was
exercised during the five years before the donation nor may the total
of any portion of the water right remaining with the donor plus the
donated portion of the water right exceed the extent to which the water
right was exercised during the five years before the donation. A water
right holder who believes his or her water right has been impaired by
a trust water right donated under subsection (1)(b) of this section may
request that the department review the impairment claim. If the
department determines that a trust water right resulting from a
donation under subsection (1)(b) of this section is impairing existing
water rights in violation of RCW 90.42.070, the trust water right shall
be altered by the department to eliminate the impairment. Any decision
of the department to alter or not to alter a trust water right donated
under subsection (1)(b) of this section is appealable to the pollution
control hearings board under RCW 43.21B.230. A donated water right's
status as a trust water right under this subsection is not evidence of
the validity or quantity of the water right.
(5) The provisions of RCW 90.03.380 and 90.03.390 do not apply to
donations for instream flows described in subsection (1)(b) of this
section, but do apply to other transfers of water rights under this
section except that the consumptive quantity of a trust water right
acquired by the state and held or authorized for use by the department
is equal to the consumptive quantity of the right prior to transfer
into the trust water rights program.
(6) No funds may be expended for the purchase of water rights by
the state pursuant to this section unless specifically appropriated for
this purpose by the legislature.
(7) Any water right conveyed to the trust water right system as a
gift that is expressly conditioned to limit its use to instream
purposes shall be managed by the department for public purposes to
ensure that it qualifies as a gift that is deductible for federal
income taxation purposes for the person or entity conveying the water
right.
(8) ((Except as provided in subsections (10) and (11) of this
section,)) If the department acquires a trust water right by lease, the
amount of the trust water right shall not exceed the extent to which
the water right was exercised during the five years before the
acquisition was made nor may the total of any portion of the water
right remaining with the original water right holder plus the portion
of the water right leased by the department exceed the extent to which
the water right was exercised during the five years before the
acquisition. A water right holder who believes his or her water right
has been impaired by a trust water right leased under this subsection
may request that the department review the impairment claim. If the
department determines that a trust water right resulting from the
leasing of that trust water right leased under this subsection is
impairing existing water rights in violation of RCW 90.42.070, the
trust water right shall be altered by the department to eliminate the
impairment. Any decision of the department to alter or not to alter a
trust water right leased under this subsection is appealable to the
pollution control hearings board under RCW 43.21B.230. The
department's leasing of a trust water right under this subsection is
not evidence of the validity or quantity of the water right.
(9) For a water right donated to or acquired by the trust water
rights program on a temporary basis, the full quantity of water
diverted or withdrawn to exercise the right before the donation or
acquisition shall be placed in the trust water rights program and shall
revert to the donor or person from whom it was acquired when the trust
period ends. For a trust water right acquired by the state and held or
authorized for use by the department, the consumptive quantity of the
right when it reverts to the donor or person from whom it was acquired
is equal to the consumptive quantity of the right prior to transfer
into the trust water rights program.
(((10) For water rights donated or leased under subsection (4) or
(8) of this section where nonuse of the water right is excused under
RCW 90.14.140(1):))
(a) The department shall calculate the amount of water eligible to
be acquired by looking at the extent to which the right was exercised
during the most recent five-year period preceding the date where nonuse
of the water right was excused under RCW 90.14.140(1); and
(b) The total of the donated or leased portion of the water right
and the portion of the water right remaining with the water right
holder shall not exceed the extent to which the water right was
exercised during the most recent five-year period preceding the date
nonuse of the water right was excused under RCW 90.14.140(1).
(11) For water rights donated or leased under subsection (4) or (8)
of this section where nonuse of the water right is exempt under RCW
90.14.140(2) (a) or (d):
(a) The amount of water eligible to be acquired shall be based on
historical beneficial use; and
(b) The total of the donated or leased portion of the water right
and the portion of the water right the water right holder continues to
use shall not exceed the historical beneficial use of that right during
the duration of the trust.
Sec. 10 RCW 90.44.510 and 2004 c 195 s 3 are each amended to read
as follows:
The department shall issue a superseding water right permit or
certificate for a groundwater right where the source of water is an
aquifer for which the department adopts rules establishing a
groundwater management subarea and water from the federal Columbia
basin project is delivered for use by a person who holds such a
groundwater right. The superseding water right permit or certificate
shall designate that portion of the groundwater right that is replaced
by water from the federal Columbia basin project as a standby or
reserve right that may be used when water delivered by the federal
project is curtailed or otherwise not available. ((The period of
curtailment or unavailability shall be deemed a low flow period under
RCW 90.14.140(2)(b).)) The total number of acres irrigated by the
person under the groundwater right and through the use of water
delivered from the federal project must not exceed the quantity of
water used and number of acres irrigated under the person's water right
permit or certificate for the use of water from the aquifer.
Sec. 11 RCW 90.44.520 and 2006 c 168 s 2 are each amended to read
as follows:
(1) In order to encourage more efficient use of water, where the
source of water is an aquifer within the Odessa groundwater subarea as
defined in chapter 173-128A WAC((:)), unused water is deemed a standby or reserve water
supply that may again be used after the period of nonuse, as long as:
((
(a) Any period of nonuse of a right to withdraw groundwater from
the aquifer is deemed to be involuntary due to a drought or low flow
period under RCW 90.14.140(2)(b); and
(b) Such(i))) (a) Reductions in water use are a result of conservation
practices, irrigation or water use efficiencies, long or short-term
changes in the types or rotations of crops grown, economic hardship,
pumping or system infrastructure costs, unavailability or unsuitability
of water, or willing and documented participation in cooperative
efforts to reduce aquifer depletion and optimize available water
resources; (((ii))) (b) withdrawal or diversion facilities are
maintained in good operating condition; and (((iii))) (c) the
department has not issued a superseding water right permit or
certificate to designate a portion of the groundwater right replaced by
federal Columbia basin project water as a standby or reserve right
under RCW 90.44.510.
(2)(a) A water right holder choosing to not exercise a water right
in accordance with the provisions of this section must provide notice
to the department in writing within one hundred eighty days of such
choice. The notice shall include the name of the water right holder
and the number of the permit, certificate, or claim.
(b) When a water right holder chooses to discontinue nonuse under
the provisions of this section, notice of such action must be provided
to the department in writing. Notice is not required under this
subsection (2)(b) for seasonal fluctuations in use if the right is not
fully exercised as reflected in the notice provided under (a) of this
subsection.
(3) The provisions of this section relating to the nonuse of all or
a portion of a water right are in addition to any other provisions
relating to such nonuse under existing law.
(4) If water from the federal Columbia basin project has been
delivered to a place of use authorized under a right to withdraw
groundwater from the aquifer, the provisions of RCW 90.44.510 apply and
supersede the provisions of this section.
(5) Portions of rights protected under this section may not be
transferred outside Odessa subarea boundaries as defined in WAC 173-128A-040. Transfers within Odessa subarea boundaries remain subject to
the provisions of RCW 90.03.380, 90.03.390, 90.44.100, and WAC 173-130A-200.
(6) The department shall submit a report to the legislature as to
the status of the aquifer, participation in the nonuse program set
forth in this section, and the outcome of the United States bureau of
reclamation's study on feasible alternatives to Odessa groundwater use.
This report must be submitted six months after completion of the United
States bureau of reclamation's study, which is expected to be completed
in February 2011. The department's report must also suggest viable
solutions and the actions needed by the state to move forward with such
solutions.
(7) This section expires July 1, 2021.
Sec. 12 RCW 90.92.070 and 2009 c 183 s 7 are each amended to read
as follows:
(1) The board may establish a mechanism to bank water for the
holders of water rights within the planning area to voluntarily deposit
them on a temporary or permanent basis.
(2) The board has the following authority regarding banked water in
the planning area:
(a) The board may accept a surface water right or a groundwater
right on a permanent or temporary basis under terms and conditions
agreed upon by the water rights holder and the board.
(b) On a temporary or permanent basis, the board may accept a water
right, or portion thereof, that will be made available under local
water plans for stream flow enhancement under the terms of the local
water plan, as provided in this chapter.
(c) Except as provided in (d) of this subsection, the board must
accept a water right temporarily banked for instream flow without
conducting a review of the extent and validity of the water right.
Such a water right may not thereafter be authorized for any other
purposes. A banked water right that has not been tentatively
determined as to its extent and validity is not entitled to be
protected from impairment by another water right.
(d) The board may manage a water right that has been banked as
mitigation for impairment to instream flows and other existing water
rights. However, the water right may only be available for mitigation
to the extent the department determines the water right is valid and
use of the water right for mitigation will not cause detriment or
injury to existing water rights.
(3)(a) A water right banked on a temporary basis remains in the
ownership of the water rights holder and not the state of Washington or
the board.
(b) A water right banked on a permanent basis must be transferred
to the state of Washington as a trust water right consistent with RCW
90.42.080.
(4) ((A water right or portion of a water right banked under this
chapter is not subject to loss by forfeiture under RCW 90.14.130
through 90.14.200. When a temporary water right is withdrawn from
banking, the time period that the water right was banked may not be
calculated as time water was not used for purposes of RCW 90.14.160,
90.14.170, and 90.14.180.)) When a temporarily deposited water right is withdrawn from
banking, the time period that the water right was banked may not be
included in the five years of prior water use for purposes of
applications to add acreage or purposes of water use under RCW
90.03.380(1).
(5)
(((6))) (5) Nothing in this chapter forecloses or diminishes the
rights of any person to apply to the department to transfer a water
right to the state trust water rights program under the authority of
chapter 90.42 RCW or to apply for a change of a water right to the
department or to a water conservancy board authorized under chapter
90.80 RCW.
(6) This section expires June 30, 2019.
Sec. 13 RCW 90.92.120 and 2009 c 183 s 12 are each amended to
read as follows:
(1) The water rights in the local water plan as authorized for the
uses described in RCW 90.92.080(4) are:
(a) Not subject to either the approval of the department under RCW
90.03.380 through 90.03.390, 90.44.100, and 90.44.105, or a tentative
determination of the validity and extent of the water rights; and
(b) ((Not subject to loss by forfeiture under RCW 90.14.130 through
90.14.200 during the period of time from when the local water plan is
approved to the expiration or nullification of the local water plan as
provided in RCW 90.92.110; and)) Not to be exercised in a manner that would result in injury
or detriment to other existing water rights unless express written
approval is obtained from the holder of the impaired water right. To
allow impacts to existing instream flow rights, the board and the
department must agree that the flow benefits provided by a local water
plan outweigh the impacts on existing instream flow rights.
(c)
(2) The years during the period of time when the local water plan
is operational may not be considered or calculated as a period of time
that the water was not applied to use ((for purposes of RCW 90.14.130
through 90.14.200. Further, the years during this period of time may
not be considered or calculated as a period of time that the water was
not applied to use)) and for purposes of future applications to change
the water right for additional purposes or acreage under RCW 90.03.380.
(3) This section expires June 30, 2019.
NEW SECTION. Sec. 14 A new section is added to chapter 90.14 RCW
to read as follows:
All matters relating to the implementation and enforcement of this
chapter by the department of ecology shall be carried out in accordance
with chapter 34.05 RCW, the administrative procedure act, except where
the provisions of this chapter expressly conflict with chapter 34.05
RCW.
NEW SECTION. Sec. 15 Sections 2 and 4 of this act expire June
30, 2019.
NEW SECTION. Sec. 16 Section 3 of this act takes effect June 30,
2019.
NEW SECTION. Sec. 17 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 2009 c 183 s 14, 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 90.14.160 (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;
(4) 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;
(5) 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;
(6) RCW 90.14.190 (Water resources decisions -- Appeals -- Attorneys'
fees) and 1987 c 109 s 14 & 1967 c 233 s 19; and
(7) 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.