H-2124.3
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SUBSTITUTE HOUSE BILL 2185
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State of Washington
56th Legislature
1999 Regular Session
By House Committee on Agriculture & Ecology (originally sponsored
by
Representatives Linville, G. Chandler and Grant)Read first time
03/02/1999.
AN ACT Relating to water rights; amending
RCW 90.03.383; adding a
new section to chapter 43.20 RCW; adding new sections to chapter
90.03
RCW; and adding new sections to chapter 90.44 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
{+ NEW SECTION. +} Sec. 1.
A new section is added to chapter
43.20 RCW to read as follows:
The department of health shall adopt as
rules conservation and
efficiency standards and safeguards that shall apply to the
transmission of water to and the distribution of water by a public
water system receiving water through an intertie approved after
the
effective date of this section. The standards shall apply
to a public
water system receiving such water if the public water system has
at
least one thousand service connections.
{+ NEW SECTION. +} Sec. 2.
A new section is added to chapter
90.03 RCW to read as follows:
If a water right certificate was issued
by the department of
ecology before the effective date of this section to a public water
system and, at the time the certificate was issued, the amount
of water
listed on the certificate as being subject to diversion for use
under
the certificate included both amounts beneficially used by the
date of
the issuance and amounts not yet beneficially used by that date,
the
water right represented by the certificate is for the total of
both
such amounts. Any amounts not yet beneficially used under
such a
certificate by the effective date of this section are governed
by the
inchoate portion of the water right and remain available to a public
water system holding the certificated right for further development
and
for transfer or change for further development. The place
of use for
the water right represented by such a certificate is the place
of use
listed on the certificate or the place of use identified in the
water
system plan approved by the department of health on the effective
date
of this section for the public water system, whichever document
identifies a larger service area for the public water system.
{+ NEW SECTION. +} Sec. 3.
A new section is added to chapter
90.03 RCW to read as follows:
The beneficial use of water governed by
an inchoate portion of a
water right described in section 2 or 5 of this act that begins
on or
after the effective date of this section is subject to the followingconditions:
(1) The beneficial use shall be consistent
with any comprehensive
land use plan adopted under chapter 36.70A RCW for the area in
which
the beneficial use takes place or, if comprehensive land use planning
has not been conducted for that area under chapter 36.70A RCW,
the
beneficial use shall be consistent with any comprehensive plan
adopted
under chapter 36.70 RCW for the area; and
(2) If a public water system applies for
a transfer, change, or
amendment to an inchoate portion of its water right to provide
for the
initial beneficial use of water governed by the inchoate portion
of the
right, the public water system and the department shall study the
effects of the transfer, change, or amendment on habitat for fish
stocks listed or proposed for listing as threatened or endangered
under
the federal endangered species act or as critical or depressed
in the
state's salmon and steelhead stock inventory. If the proposed
use
would adversely impact such habitat and the public water system
does
not withdraw the application, the system shall develop a plan for
mitigating the adverse impacts and for monitoring the effectiveness
of
the mitigation effort. Any such mitigation shall be conducted
concurrently with the transfer, change, or amendment of the right.
This subsection includes, but is not limited to, any change of
the
place of use for such an inchoate portion of a water right made
through
an intertie. {+ NEW SECTION. +} Sec.
4. A new section is added to chapter
90.03 RCW to read as follows:
(1) The department may not approve any
transfer or change of a
water right held by a public water system that changes the place
of use
for the right for beneficial use by a public water system unless
the
conservation and efficiency measures and safeguards for the
distribution of water in the new place of use are at least as stringent
as the conservation and efficiency measures and safeguards existing
for
the distribution of water by the system in the place of use for
the
original water right before the transfer or change.
(2) This subsection applies to any transfer
or change of a water
right that changes the place of use of water so that it may be
beneficially used by a public water system with one thousand or
more
service connections. The department of ecology may not approve
such a
transfer or change for a water right unless the system for distributing
water in the new place of use satisfies the standards and safeguards
adopted by the department of health under section 1 of this act.
{+ NEW SECTION. +} Sec. 5.
A new section is added to chapter
90.44 RCW to read as follows:
If a water right certificate was issued
by the department of
ecology before the effective date of this section to a public water
system and, at the time the certificate was issued, the amount
of water
listed on the certificate as being subject to withdrawal for use
under
the certificate included both amounts beneficially used by the
date of
the issuance and amounts not yet beneficially used by that date,
the
water right represented by the certificate is for the total of
both
such amounts. Any amounts not yet beneficially used under
such a
certificate by the effective date of this section are governed
by the
inchoate portion of the water right and remain available to a public
water system holding the certificated right for further development
and
for further development through the amendment of the right.
The place
of use for the water right represented by such a certificate is
the
place of use listed on the certificate or the place of use identified
in the water system plan approved by the department of health on
the
effective date of this section for the public water system, whichever
document identifies a larger service area for the public water
system.
{+ NEW SECTION. +} Sec. 6.
A new section is added to chapter
90.44 RCW to read as follows:
(1) The department may not approve any
amendment of a water right
held by a public water system that changes the place of use for
the
right for beneficial use by a public water system unless the
conservation and efficiency measures and safeguards for the
distribution of water in the new place of use are at least as stringent
as the conservation and efficiency measures and safeguards existing
for
the distribution of water by the system in the place of use for
the
original water right before the amendment.
(2) This subsection applies to any amendment
of a water right that
changes the place of use of water so that it may be beneficially
used
by a public water system with one thousand or more service connections.
The department of ecology may not approve such an amendment for
a water
right unless the system for distributing water in the new place
of use
satisfies the standards and safeguards adopted by the department
of
health under section 1 of this act.
Sec. 7. RCW 90.03.383 and 1991 c
350 s 1 are each amended to read
as follows:
(1) The legislature recognizes the value
of interties for improving
the reliability of public water systems, enhancing their management,
and more efficiently utilizing the increasingly limited resource.
Given the continued growth in the most populous areas of the state,
the
increased complexity of public water supply management, and the
trend
toward regional planning and regional solutions to resource issues,
interconnections of public water systems through interties provide
a
valuable tool to ensure reliable public water supplies for the
citizens
of the state. Public water systems have been encouraged in
the past to
utilize interties to achieve public health and resource management
objectives. The legislature finds that it is in the public
interest to
recognize interties existing and in use as of January 1, 1991,
and to
have associated water rights modified by the department of ecology
to
reflect current use of water through those interties, pursuant
to
subsection (3) of this section. The legislature further finds
it in
the public interest to develop a coordinated process to review
proposals for interties commencing use after January 1, 1991.
(2) For the purposes of this section,
the following definitionsshall apply:
(a) "Interties" are interconnections between
public water systems
permitting exchange{+ , acquisition, +} or delivery of water between
those systems for other than emergency supply purposes, where such
exchange or delivery is within established instantaneous and annual
withdrawal rates specified in the systems' existing water right
permits
or certificates, or contained in claims filed pursuant to chapter
90.14
RCW, and which results in better management of public water supply
consistent with existing rights and obligations. Interties
include
interconnections between public water systems permitting exchange{+
,
acquisition, +} or delivery of water to serve as primary or secondary
sources of supply(({- , but do not include development of new sources
of supply to meet future demand -})).
(b) "Service area" is the area designated
in a water system plan or
a coordinated water system plan pursuant to chapter 43.20 or 70.116
RCW
respectively. When a public water system does not have a
designated
service area subject to the approval process of those chapters,
the
service area shall be the designated place of use contained in
the
water right permit or certificate, or contained in the claim filed
pursuant to chapter 90.14 RCW.
(3) Public water systems with interties
existing and in use as of
January 1, 1991, or that have received written approval from the
department of health prior to that date, shall file written notice
of
those interties with the department of health and the department
of
ecology. The notice may be incorporated into the public water
system's
five-year update of its water system plan, but shall be filed no
later
than June 30, 1996. The notice shall identify the location
of the
intertie; the dates of its first use; the purpose, capacity, and
current use; the intertie agreement of the parties and the service
areas assigned; and other information reasonably necessary to modify
the water right permit. Notwithstanding the provisions of
RCW
90.03.380 and 90.44.100, for public water systems with interties
existing and in use as of January 1, 1991, the department of ecology,
upon receipt of notice meeting the requirements of this subsection,
shall, as soon as practicable, modify the place of use descriptions
in
the water right permits, certificates, or claims to reflect the
actual
use through such interties, provided that the place of use is within
service area designations established in a water system plan approved
pursuant to chapter 43.20 RCW, or a coordinated water system plan
approved pursuant to chapter 70.116 RCW, and further provided that
the
water used is within the instantaneous and annual withdrawal rates
specified in the water right permit and that no outstanding complaints
of impairment to existing water rights have been filed with the
department of ecology prior to September 1, 1991. Where such
complaints of impairment have been received, the department of
ecology
shall make all reasonable efforts to resolve them in a timely manner
through agreement of the parties or through available administrativeremedies.
(4) Notwithstanding the provisions of
RCW 90.03.380 and 90.44.100,
exchange or delivery of water through interties commencing use
after
January 1, 1991, shall be permitted when the intertie improves
overall
system reliability, enhances the manageability of the systems,
provides
opportunities for conjunctive use, or delays or avoids the need
to
develop new water sources, and otherwise meets the requirements
of this
section, provided that each public water system's water use shall
not
exceed the instantaneous or annual withdrawal rate specified in
its
water right authorization, shall not adversely affect existing
water
rights, and shall not be inconsistent with state-approved plans
such as
water system plans or other plans which include specific proposals
for
construction of interties. Interties commencing use after
January 1,
1991, shall not be inconsistent with regional water resource plans
developed pursuant to chapter 90.54 RCW.
(5) For public water systems subject to
the approval process of
chapter 43.20 RCW or chapter 70.116 RCW, proposals for interties
commencing use after January 1, 1991, shall be incorporated into
water
system plans pursuant to chapter 43.20 RCW or coordinated water
system
plans pursuant to chapter 70.116 RCW and submitted to the department
of
health and the department of ecology for review and approval as
provided for in subsections (5) through (9) of this section.
The plan
shall state how the proposed intertie will improve overall system
reliability, enhance the manageability of the systems, provide
opportunities for conjunctive use, or delay or avoid the need to
develop new water sources.
(6) The department of health shall be
responsible for review and
approval of proposals for new interties. In its review the
department
of health shall determine whether the intertie satisfies the criteria
of subsection (4) of this section, with the exception of water
rights
considerations, which are the responsibility of the department
of
ecology, and shall determine whether the intertie is necessary
to
address emergent public health or safety concerns associated with
public water supply.
(7) If the intertie is determined by the
department of health to be
necessary to address emergent public health or safety concerns
associated with public water supply, the public water system shall
amend its water system plan as required and shall file an application
with the department of ecology to change its existing water right
to
reflect the proposed use of the water as described in the approved
water system plan. The department of ecology shall process
the
application for change pursuant to RCW 90.03.380 or 90.44.100 as
appropriate, except that, notwithstanding the requirements of those
sections regarding notice and protest periods, applicants shall
be
required to publish notice one time, and the comment period shall
be
fifteen days from the date of publication of the notice.
Within sixty
days of receiving the application, the department of ecology shall
issue findings and advise the department of health if existing
water
rights are determined to be adversely affected. If no determination
is
provided by the department of ecology within the sixty-day period,
the
department of health shall proceed as if existing rights are not
adversely affected by the proposed intertie. The department
of ecology
may obtain an extension of the sixty-day period by submitting written
notice to the department of health and to the applicant indicating
a
definite date by which its determination will be made. No
additional
extensions shall be granted, and in no event shall the total review
period for the department of ecology exceed one hundred eighty
days.
(8) If the department of health determines
the proposed intertie
appears to meet the requirements of subsection (4) of this section
but
is not necessary to address emergent public health or safety concerns
associated with public water supply, the department of health shall
instruct the applicant to submit to the department of ecology an
application for change to the underlying water right or claim as
necessary to reflect the new place of use. The department
of ecology
shall consider the applications pursuant to the provisions of RCW
90.03.380 and 90.44.100 as appropriate. If in its review
of proposed
interties and associated water rights the department of ecology
determines that additional information is required to act on the
application, the department may request applicants to provide
information necessary for its decision, consistent with agency
rules
and written guidelines. Parties disagreeing with the decision
of the
department of ecology on the application for change in place of
use may
appeal the decision to the pollution control hearings board.
(9) The department of health may approve
plans containing intertie
proposals prior to the department of ecology's decision on the
water
right application for change in place of use. However, notwithstanding
such approval, construction work on the intertie shall not begin
until
the department of ecology issues the appropriate water right document
to the applicant consistent with the approved plan.
{+ (10) An intertie may not be used to
deliver a primary or
secondary supply of water to a receiving system on a temporary
basis
unless the terms of the intertie agreement specify the source of
the
water that will be used by the receiving system to replace the
water
delivered on the temporary basis, and provide that replacement
water
will be available for delivery to, or use by, the receiving system
before delivery by the supplying system under the agreement is
terminated. However, if a primary or secondary supply of
water is
delivered to a receiving system on a temporary basis by means of
an
intertie on the effective date of this section and the agreement
between the supplying system and receiving system does not contain
such
provision for such a replacement supply of water for the receiving
system, the delivery of the water by the supplying system to the
receiving system may not be terminated until the agreement is modified
to establish such provisions, and such replacement water is available
for delivery to or use by the receiving system. +}
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