Z-0312.3
_______________________________________________
HOUSE BILL 1314
_______________________________________________
State of Washington
56th Legislature
1999 Regular Session
By Representatives Linville, Regala, Cooper, Kessler, Doumit,
Dickerson, Ruderman, Dunshee, Haigh, Eickmeyer, Murray, Morris,
Veloria, Keiser, H. Sommers, Rockefeller, Grant, McIntire, Fisher,
Scott, Hatfield, Reardon, O'Brien and Lantz; by request of GovernorLocke
Read first time 01/21/1999. Referred to Committee on Agriculture
&Ecology.
AN ACT Relating to water resource management
and facilitating
fishery protection and recovery; amending RCW 90.54.020, 90.54.180,
90.03.290, 43.20.230, 90.48.495, 90.46.005, 90.46.030, 90.46.040,
90.46.120, 90.46.130, 90.03.380, 90.42.080, 90.03.330, 90.03.015,
39.34.020, 90.03.386, 90.03.383, 90.44.050, 58.17.110, 19.27.097,
90.03.255, 90.44.055, 75.20.106, 77.15.300, 90.03.600, 43.21B.300,
90.08.040, 90.08.060, 90.03.070, 90.58.080, 43.99E.015, and 43.99E.030;
reenacting and amending RCW 43.83B.300; adding new sections to
chapter
43.83B RCW; adding new sections to chapter 70.119A RCW; adding
a new
section to chapter 58.17 RCW; adding a new section to chapter 35.21
RCW; adding a new section to chapter 35A.21 RCW; adding a new section
to chapter 36.01 RCW; adding a new section to chapter 90.54 RCW;
adding
new sections to chapter 90.46 RCW; adding new sections to chapter
90.03
RCW; adding new sections to chapter 90.44 RCW; adding a new section
to
chapter 39.34 RCW; adding a new section to chapter 90.58 RCW; adding
a
new section to chapter 43.27A RCW; adding new sections to chapter
36.70A RCW; adding a new section to chapter 43.21C RCW; adding
new
sections to chapter 90.42 RCW; creating new sections; prescribing
penalties; making an appropriation; and providing an expiration
date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
{+ NEW SECTION. +} Sec. 1.
The legislature finds that numerous
fish stocks of the state are being listed or are proposed to be
listed
as threatened or endangered under the federal endangered species
act.
The legislature further finds that existing state laws form a good
foundation for the state to respond to the listings and proposed
listings, but that various laws relating to water resources, land
use,
and fish protection and restoration must be strengthened to minimize
the potential for federal preemption of state authority and autonomy
regarding the management of the state's fisheries and water resources.
PART I
WATER CONSERVATION
Sec. 101. RCW 90.54.020 and 1997
c 442 s 201 are each amended to
read as follows:
Utilization and management of the waters
of the state shall be
guided by the following general declaration of fundamentals:
(1) Uses of water for domestic, stock
watering, industrial,
commercial, agricultural, irrigation, hydroelectric power production,
mining, fish and wildlife maintenance and enhancement, recreational,
and thermal power production purposes, and preservation of
environmental and aesthetic values, and all other uses compatible
with
the enjoyment of the public waters of the state, are declared to
bebeneficial.
(2) Allocation of waters among potential
uses and users shall be
based generally on the securing of the maximum net benefits for
the
people of the state. Maximum net benefits shall constitute
total
benefits less costs including opportunities lost.
(3) The quality of the natural environment
shall be protected and,
where possible, enhanced as follows:
(a) Perennial rivers and streams of the
state shall be retained
with base flows necessary to provide for preservation of wildlife,
fish, scenic, aesthetic and other environmental values, and
navigational values. Lakes and ponds shall be retained substantially
in their natural condition. Withdrawals of water which would
conflict
therewith shall be authorized only in those situations where it
is
clear that overriding considerations of the public interest will
beserved.
(b) Waters of the state shall be of high
quality. Regardless of
the quality of the waters of the state, all wastes and other materials
and substances proposed for entry into said waters shall be provided
with all known, available, and reasonable methods of treatment
prior to
entry. Notwithstanding that standards of quality established
for the
waters of the state would not be violated, wastes and other materials
and substances shall not be allowed to enter such waters which
will
reduce the existing quality thereof, except in those situations
where
it is clear that overriding considerations of the public interest
will
be served. Technology-based effluent limitations or standards
for
discharges for municipal water treatment plants located on the
Chehalis, Columbia, Cowlitz, Lewis, or Skagit river shall be adjusted
to reflect credit for substances removed from the plant intake
waterif:
(i) The municipality demonstrates that
the intake water is drawn
from the same body of water into which the discharge is made; and
(ii) The municipality demonstrates that
no violation of receiving
water quality standards or appreciable environmental degradation
willresult.
(4) The development of multipurpose water
storage facilities shall
be a high priority for programs of water allocation, planning,
management, and efficiency. The department, other state agencies,
{+
and +} local governments, and planning units formed under (({-
section
107 or 108 of this act -})) {+ chapter 90.82 RCW +} shall evaluate
the
potential for the development of new storage projects and the benefits
and effects of storage in reducing damage to stream banks and property,
increasing the use of land, providing water for municipal, industrial,
agricultural, power generation, and other beneficial uses, and
improving stream flow regimes for fisheries and other instream
uses.
(5) Adequate and safe supplies of water
shall be preserved and
protected in potable condition to satisfy human domestic needs.
(6) Multiple-purpose impoundment structures
are to be preferred
over single-purpose structures. Due regard shall be given
to means and
methods for protection of fishery resources in the planning for
and
construction of water impoundment structures and other artificialobstructions.
(7) Federal, state, and local governments,
individuals,
corporations, groups{+ , +} and other entities shall (({- be encouraged
to -})) carry out practices of conservation as they relate to the
use
of the waters of the state. In addition to traditional development
approaches, improved water use efficiency and conservation{+ ,
including reclaiming municipal and industrial effluent, +} shall
be
emphasized in the management of the state's water resources and
(({- in
some cases -})) will be a potential new source of water with which
to
meet future needs throughout the state. {+ Where reclaimed
water is a
feasible replacement source of water in accordance with criteria
adopted under section 206 of this act, it shall be used for nonpotable
water uses in lieu of using potable water for those uses. +}
(8) Development of water supply systems,
whether publicly or
privately owned, which provide water to the public generally in
regional areas within the state shall be encouraged. Development
of
water supply systems for multiple domestic use which will not serve
the
public generally shall be discouraged where water supplies are
available from water systems serving the public.
(9) Full recognition shall be given in
the administration of water
allocation and use programs to the natural interrelationships of
surface and ground waters.
(10) Expressions of the public interest
will be sought at all
stages of water planning and allocation discussions.
(11) Water management programs, including
but not limited to, water
quality, flood control, drainage, erosion control{+ , +} and storm
runoff are deemed to be in the public interest.
Sec. 102. RCW 90.54.180 and 1989
c 348 s 5 are each amended to
read as follows:
Consistent with the fundamentals of water
resource policy set forth
in this chapter, state and local governments, individuals,
corporations, groups{+ , +} and other entities shall (({- be encouraged
to -})) carry out water use efficiency and conservation programs
and
practices consistent with the following:
(1) Water efficiency and conservation
programs (({- should -})) {+
shall +} utilize an appropriate mix of economic incentives, cost
share
programs, regulatory programs, and technical and public information
efforts. Programs which encourage voluntary participation
arepreferred.
(2) Increased water use efficiency (({-
should receive
consideration as -})) {+ and conservation, including reclaiming
municipal and industrial effluent shall be considered +} a potential
source of water in state and local water resource planning processes.
In determining the cost-effectiveness of alternative water sources,
consideration should be given to the benefits of conservation,
waste
water recycling, and impoundment of waters.
(3) In determining the cost-effectiveness
of alternative water
sources, full consideration should be given to the benefits of
storage
which can reduce the damage to stream banks and property, increase
the
utilization of land, provide water for municipal, industrial,
agricultural, and other beneficial uses, provide for the generation
of
electric power from renewable resources, and improve stream flow
regimes for fishery and other instream uses.
(4) Entities receiving state financial
assistance for construction
of water source expansion or acquisition of new sources shall develop,
and implement if cost-effective, a water use efficiency and
conservation element of a water supply plan pursuant to RCW43.20.230(1).
(5) State programs to improve water use
efficiency (({- should -}))
{+ shall +} focus on those areas of the state in which water is
overappropriated; areas that experience diminished stream flows
or
aquifer levels{+ , including areas with declining fish stocks due
to
lack of stream flow +}; and areas where projected water needs,
including those for instream flows, exceed available supplies.
(6) Existing and future generations of
citizens of the state of
Washington (({- should -})) {+ must +} be made aware of the importance
of the state's water resources and the need for wise and efficient
use
and development of this vital resource. In order to increase
this
awareness, state agencies (({- should -})) {+ shall +} integrate
public
education on increasing water use efficiency into existing public
information efforts. This effort shall be coordinated with
other
levels of government, including local governments and Indian tribes.
Sec. 103. RCW 90.03.290 and 1994
c 264 s 84 are each amended to
read as follows:
{+ (1) +} When an application complying
with the provisions of this
chapter and with the rules (({- and regulations -})) of the department
has been filed, (({- the same -})) {+ it +} shall be placed on
record
with the department(({- , and it shall be its duty to -})){+ .
The
department shall +} investigate the application, and determine
what
water, if any, is available for appropriation, and find and determine
to what beneficial use or uses it can be applied.
{+ (2) +} If it is proposed to appropriate
water for irrigation
purposes, the department shall investigate, determine{+ , +} and
find
what lands are capable of irrigation by means of water found available
for appropriation. If it is proposed to appropriate water
for the
purpose of power development, the department shall investigate,
determine{+ , +} and find whether the proposed development is likely
to
prove detrimental to the public interest, having in mind the highest
feasible use of the waters belonging to the public.
{+ (3) +} If the application does not
contain, and the applicant
does not promptly furnish sufficient information on which to base
such
findings, the department may issue a preliminary permit, for a
period
of not to exceed three years, requiring the applicant to make such
surveys, investigations, studies, and progress reports, as in the
opinion of the department may be necessary. If the applicant
fails to
comply with the conditions of the preliminary permit, it and the
application or applications on which it is based shall be automatically
canceled and the applicant so notified. If the holder of
a preliminary
permit shall, before its expiration, file with the department a
verified report of expenditures made and work done under the
preliminary permit, which, in the opinion of the department,
establishes the good faith, intent and ability of the applicant
to
carry on the proposed development, the preliminary permit may,
with the
approval of the (({- governor -})) {+ director +}, be extended,
but not
to exceed a maximum period of five years from the date of the issuance
of the preliminary permit.
{+ (4) +} The department shall make and
file as part of the record
in the matter, written findings of fact concerning all things
investigated, and if it shall find that there is water available
for
appropriation for a beneficial use, and the appropriation thereof
as
proposed in the application will not impair existing rights or
be
detrimental to the public welfare, it shall issue a permit stating
the
amount of water to which the applicant shall be entitled and the
beneficial use or uses to which it may be applied(({- : PROVIDED,
That
where -})){+ . If +} the water applied for is to be used
for
irrigation purposes, it shall become appurtenant only to such land
as
may be reclaimed thereby to the full extent of the soil for
agricultural purposes. But where there is no unappropriated
water in
the proposed source of supply, or where the proposed use conflicts
with
existing rights, or threatens to prove detrimental to the public
interest, having due regard to the highest feasible development
of the
use of the waters belonging to the public, it shall be {+ the +}
duty
of the department to reject such application and to refuse to issue
the
permit asked for. {+ The department may also reject the application
and refuse to issue the permit if reliance on an alternative source
of
water, including, but not limited to, water that could be acquired
through a change or transfer of an existing water right or use
of a
feasible source of reclaimed water, would better serve the public
interest. +} If the permit is refused because of conflict
with
existing rights and such applicant shall acquire {+ the +} same
by
purchase or condemnation under RCW 90.03.040, the department may
thereupon grant such permit.
{+ (5) +} Any application may be approved
for a less amount of
water than that applied for, if there exists substantial reason
therefor, and in any event shall not be approved for more water
than
can be applied to beneficial use for the purposes named in the
application. In determining whether or not a permit shall
issue upon
any application, it shall be the duty of the department to investigate
all facts relevant and material to the application. After
the
department approves said application in whole or in part and before
any
permit shall be issued thereon to the applicant, such applicant
shall
pay the fee provided in RCW 90.03.470(({- : PROVIDED FURTHER,
That in
the event -})){+ . If +} a permit is issued by the department
upon any
application, it shall be its duty to notify the director of fish
and
wildlife of such issuance.
{+ NEW SECTION. +} Sec. 104.
A new section is added to chapter
43.83B RCW to read as follows:
(1) It is the intent of the legislature
to provide moneys to the
department of ecology for grants and loans to public bodies engaged
in
irrigation water supply for the purpose of improved drought
preparedness. As used in this chapter, "drought preparedness"
means
the implementation of agricultural water supply conservation projectsthat:
(a) Are identified in approved water conservation
plans;
(b) Mitigate the effects of future droughts
on existing water uses
in drought-prone areas;
(c) Result in conveying trust water rights
to the state forinstream flows;
(d) Produce increases in instream flows;
and
(e) Are located in predominantly agricultural
areas that have
threatened or endangered species listed or proposed for listing
under
the federal endangered species act or that have salmonid stocks
listed
as critical or depressed under the state salmon and steelhead stockinventory.
(2) The department of ecology is authorized
to make loans or
grants, or combinations of loans and grants from drought preparedness
funds when needed to implement agricultural water supply conservation
or efficiency projects. For the purposes of this section,
"drought
preparedness funds" means funds appropriated from the state drought
preparedness account created under section 1004 of this act.
The
department of ecology may make the loans or grants, or combinations
of
loans and grants as matching funds in any case where federal, local,
or
other funds have been made available on a matching basis.
The
department may make a loan of up to ninety percent of the total
eligible project cost or combination loan and grant up to one hundred
percent of the total single project cost. The grant portion
of any
single project shall not exceed twenty percent of the total project
cost. No single entity shall receive more than ten percent
of the
total drought preparedness funds available.
(3) The following eligibility criteria
must be met in order for an
entity to apply for drought preparedness funds:
(a) The entity must be organized as a
public body, capable of
accepting and administering loans and grants;
(b) The entity must have a completed,
approved water conservation
plan that recommends the project or projects proposed for funding;
and
(c) The proposed project must be sited
in an area that:
(i) Has threatened or endangered fish
species listed or proposed
for listing under the federal endangered species act or depressed
or
critical stocks under the state salmon and steelhead stock assessment;
(ii) Has agriculture as its economic base;
and
(iii) Is prone to drought conditions.
(4) The proposed project must result in
at least a ten percent
decrease in diversion from the applicable surface water source,
and
must increase the stream flow in the same surface water source.
If the
entity is served mainly by ground water, there must be at least
a ten
percent decrease in the instantaneous and annual amount withdrawn.
There must be an increase in surface water sources in hydraulic
continuity with the ground water source.
(5) Recipients of loans and grants under
this section may retain
and use conserved water under the following conditions:
(a) The person proposing the change or
transfer must agree in
writing to convey to the state of Washington at least one-half
of the
transferable net water savings for the purpose of establishing
a trust
water right under chapter 90.38 or 90.42 RCW as applicable.
The
proportion of water that must be conveyed to the state of Washington
shall be equivalent to the ratio of the state or federal funding
to the
overall project cost, but in no case less than one-half of the
net
water savings. The person proposing to change or transfer
and use the
remaining water on additional or different lands may do so only
under
an approved change to the water right issued by the department
of
ecology under RCW 90.03.380. Reallocation and use of conserved
water
under this section shall not impair any existing water rights.
(b) The department of ecology may waive
the requirement to convey
a trust water right to the state only where there is no discernable
public purpose to be benefited by establishment of a trust water
right
for those waters. In such case, in lieu of conveying a trust
water
right, the person proposing the conservation project must remit
to the
state treasurer a payment equal to the value of the proportion
of the
water right not conveyed to the state. The amount of this
payment
shall be determined by a licensed independent real estate appraiser
selected by agreement of the department of ecology and the applicant.
The basis of the appraisal shall be the value of the proportion
of the
conserved water not conveyed to the state in consideration of the
economic value of water in the immediate area where the water right
is
used. The cost of the appraisal shall be shared equally by
the
department of ecology and the applicant. Any funds conveyed
to the
state under this section shall be deposited in the state stream
flow
restoration account established in section 1005 of this act for
use in
purchasing or leasing trust water rights.
{+ NEW SECTION. +} Sec. 105.
A new section is added to chapter
70.119A RCW to read as follows:
(1) Each public water system with fifteen
or more serviceconnections shall:
(a) Implement a water conservation program
promotion targeted at
system customers; and
(b) Implement other cost-effective water
conservation measures
identified in approved water conservation plans required under
RCW43.20.230.
(2) Public water systems with one thousand
or more service
connections shall:
(a) Implement a leak detection and repair
program, and shall repair
leaks if the system's unaccounted for water is ten percent or more
of
total system water usage;
(b) Conduct water audits to identify internal
water distribution
and associated opportunities for improved water use efficiency;
and
(c) Utilize commodity-based water rates
and not declining block
rate structures. Commodity-based rate structures are based,
at least
in part, upon the volume of water used. Declining block rate
structures separate consumption levels into two or more blocks,
with
rates per unit of water decreasing as the total volume of consumption
by a customer increases.
(3) Public water systems that have completed
a conservation plan
within six years prior to the effective date of this section in
accordance with the requirements of the department need not create
a
new plan, but shall address any of the above elements that have
not
been previously addressed in the next scheduled update of the water
system plan and conservation plan.
Sec. 106. RCW 43.20.230 and 1993
sp.s. c 4 s 9 are each amended to
read as follows: Consistent with the water
resource planning process of the
department of ecology, the department of health shall:
(1) Develop (({- procedures and guidelines
relating to water use
efficiency, as defined in section 4(3), chapter 348, Laws of 1989,
to
be included in the development and approval of cost-efficient water
system plans required under RCW 43.20.050 -})) {+ comprehensive
water
conservation planning requirements for public water systems based
upon
system size, to be included in water system plans and small water
system management programs required under RCW 43.20.050.
Conservation
plans approved under this section shall meet the water conservation
planning requirements of the department of ecology for the purposes
of
water right permit processing. As part of these comprehensive
planning
requirements water systems shall: +}
{+ (a) Demonstrate compliance with the
conservation requirements
contained in section 113 of this act; +}
{+ (b) Evaluate service meter installation;
+}
{+ (c) Evaluate conservation measures
and implement those that are
cost-effective; +}
{+ (d) Evaluate development and implementation
of a leak detection
and repair program; and +}
{+ (e) Utilize water use efficiency performance
standards developed
under section 113 of this act for conservation planning, water
demand
forecasting, and other water system planning purposes +};
(2) {+ Review and approve water conservation
plans, and monitor
plan implementation to ensure compliance with comprehensive
conservation planning requirements under subsection (1) of thissection;
(3) +} Develop criteria, with input from
technical experts, with
the objective of encouraging the cost-effective reuse of greywater
and
other water recycling practices, consistent with protection of
public
health and water quality;
(({- (3) -})) {+ (4) +} Provide advice
and technical assistance
upon request in the development of water use efficiency plans{+
. This
includes development of model landscape ordinances, assistance
to
public water systems and local governments regarding water
conservation, and general public education on water conservation
and
efficiency +}; (({- and
(4) -})) {+ (5) +} Provide advice and
technical assistance on
request for development of model conservation rate structures for
public water systems(({- . Subsections (1), (2), and (3)
of this
section are subject to the availability of funding -})){+ ; and
(6) Adopt rules as necessary through the
state board of health to
implement any provisions of this section +}.
{+ NEW SECTION. +} Sec. 107.
A new section is added to chapter
70.119A RCW to read as follows:
Public water systems with fifteen or more
service connections shall
collect monthly water use data from all water sources used to serve
the
system. Water use data collected under this section shall
be submitted
annually to the department in a form and manner prescribed by the
department. Data collected under this section shall be coordinated
with water use data collection requirements of the department ofecology.
{+ NEW SECTION. +} Sec. 108.
A new section is added to chapter
58.17 RCW to read as follows:
In determining whether a proposed short
plat, short subdivision, or
subdivision meets the requirements for potable water supplies as
required under RCW 58.17.060 or 58.17.110, and otherwise serves
the
public use and interest, the city, town, or county shall require:
(1) Conformance to any water conservation
ordinances or plans
adopted by the city, town, or county;
(2) Utilization of water conservation
measures consistent with any
regional watershed plan adopted under chapter 90.82 RCW; and
(3) Utilization of reclaimed water where
potable water is not
required consistent with any local ordinance adopted on water reuserequirements.
{+ NEW SECTION. +} Sec. 109.
A new section is added to chapter
35.21 RCW to read as follows:
(1) Any city or town may adopt a water
conservation program by
ordinance or other legal authority. This includes ordinances
to
implement the provisions of any regional watershed plan adopted
under
chapter 90.82 RCW. Such a program may include the followingrequirements:
(a) Utilization of water conservation
measures consistent with
specific provisions of regional watershed plans adopted under chapter90.82
RCW;
(b) Utilization of water conservation
measures that may be in
addition to those required by either the department of health or
the
department of ecology, including landscape irrigation requirements,
public fixture retrofit and rebate programs, and commercial and
industrial conservation programs; and
(c) Utilization of any opportunities for
using reclaimed water
where potable water is not required.
(2) The provisions of any water conservation
program shall be
implemented by the city or town through development of any
comprehensive plan, development regulations, issuance of permits
and
other approvals, development of any sewerage and/or water general
plan
under RCW 36.94.030, operation of any sewerage or water systems
under
chapter 36.94 RCW, or as otherwise allowed by law.
{+ NEW SECTION. +} Sec. 110.
A new section is added to chapter
35A.21 RCW to read as follows:
(1) Any city or town may adopt a water
conservation program by
ordinance or other legal authority. This includes ordinances
to
implement the provisions of any regional watershed plan adopted
under
chapter 90.82 RCW. Such a program may include the followingrequirements:
(a) Utilization of water conservation
measures consistent with
specific provisions of regional watershed plans adopted under chapter90.82
RCW;
(b) Utilization of water conservation
measures that may be in
addition to those required by either the department of health or
the
department of ecology, including landscape irrigation requirements,
public fixture retrofit and rebate programs, and commercial and
industrial conservation programs; and
(c) Utilization of any opportunities for
using reclaimed water
where potable water is not required.
(2) The provisions of any water conservation
program shall be
implemented by the city or town through development of any
comprehensive plan, development regulations, issuance of permits
and
other approvals, development of any sewerage and/or water general
plan
under RCW 36.94.030, operation of any sewerage or water systems
under
chapter 36.94 RCW, or as otherwise allowed by law.
{+ NEW SECTION. +} Sec. 111.
A new section is added to chapter
36.01 RCW to read as follows:
(1) Any county may adopt a water conservation
program by ordinance
or other legal authority. This includes ordinances to implement
the
provisions of any regional watershed plan adopted under chapter
90.82
RCW. Such a program may include the following requirements:
(a) Utilization of water conservation
measures consistent with
specific provisions of regional watershed plans adopted under chapter90.82
RCW;
(b) Utilization of water conservation
measures that may be in
addition to those required by either the department of health or
the
department of ecology, including landscape irrigation requirements,
public fixture retrofit and rebate programs, and commercial and
industrial conservation programs; and
(c) Utilization of any opportunities for
using reclaimed water
where potable water is not required.
(2) The provisions of any water conservation
program shall be
implemented by the county through development of any comprehensive
plan, development regulations, issuance of permits and other approvals,
development of any sewerage and/or water general plan under RCW
36.94.030, operation of any sewerage or water systems under chapter
36.94 RCW, or as otherwise allowed by law.
Sec. 112. RCW 90.48.495 and 1989
c 348 s 10 are each amended to
read as follows:
The department of ecology shall require
sewer plans {+ that propose
an expansion of treatment capacity +} to include a discussion of
water
conservation measures considered or underway and their anticipated
impact on public sewer service. {+ The plans shall evaluate
the cost-
effectiveness of funding water conservation programs as an alternative
to expanding sewage treatment capacity. +}
{+ NEW SECTION. +} Sec. 113.
A new section is added to chapter
90.54 RCW to read as follows:
(1) The definitions in this subsection
apply throughout this
section unless the context clearly requires otherwise.
(a) "Reasonable and beneficial use" means
the minimum amount of
water necessary to carry out the intended purpose of water use
without
waste. It may include a reasonable amount of water lost due
to normal
conveyance and application losses.
(b) "Water duty" means that measure of
water, which by careful
management and use, without waste, is reasonably required for the
use
or proposed use.
(2) The department in consultation with
the department of health
shall adopt rules establishing water use efficiency performance
standards for various water uses by December 31, 2000. The
department
shall engage in a negotiated rule-making process involving
representatives of interested parties. However, if the participants
do
not reach consensus by July 1, 2000, the department shall proceed
with
the adoption of rules using the advice and guidance of the participants
to the extent possible. The standards shall be based on the
quantity
of water required for reasonable and beneficial use of water without
waste. The rules shall also address standards for reasonable
conveyance loss of water for various means of water conveyance.
Basin
management plans adopted under this chapter or watershed plans
adopted
under chapter 90.82 RCW may specify water use efficiency performance
standards for the basin or watershed that vary from and supersede
those
adopted by the department under this section if Washington state
government is a participant in the planning process and agrees
with the
locally based standards. The department shall adopt rules
implementing
locally determined standards.
(3) The state-wide or local standards
adopted under this section
shall be used for water demand forecasting, public water system
planning, and assessing whether new water rights are needed.
In
addition, the standards shall be used to guide the development
and
evaluation of water conservation plans developed under chapter
43.99E
RCW and RCW 43.20.230.
(4) Any person claiming a right or a need
to the use of water in
excess of the standards adopted under this section carries the
burden
of showing that special circumstances require a variance from thestandards.
(5) The department shall consult with
the Washington State
University cooperative extension service and the United States
natural
resource conservation service regarding normal water duties for
irrigation water uses.
PART II
RECLAIMED WATER
Sec. 201. RCW 90.46.005 and 1997
c 355 s 1 are each amended to
read as follows:
The legislature finds that by encouraging
the use of reclaimed
water while assuring the health and safety of all Washington citizens
and the protection of its environment, the state of Washington
will
continue to use water in the best interests of present and futuregenerations.
To facilitate the use of reclaimed water
as soon as is practicable,
the legislature encourages the cooperative efforts of the public
and
private sectors and the use of pilot projects to effectuate the
goals
of this chapter. The legislature further directs the department
of
health and the department of ecology to coordinate efforts towards
developing an efficient and streamlined process for creating and
implementing processes for the use of reclaimed water. {+
The
department of ecology is the lead agency for reclaimed water permitting
and design approval, and the department of health is to provide
public
health input and assessment on all department of ecology reclaimed
water permit decisions. +}
It is hereby declared that the people
of the state of Washington
have a primary interest in the development of facilities to provide
reclaimed water to replace potable water in nonpotable applications,
to
supplement existing surface and ground water supplies, and to assist
in
meeting the future water requirements of the state. {+ The
use of
reclaimed water will contribute to the restoration and protection
of
instream flows, which are crucial to preservation of the state's
salmonid fishery resources. +}
The legislature further finds and declares
that the utilization of
reclaimed water by local communities for domestic, agricultural,
industrial, recreational, and fish and wildlife habitat creation
and
enhancement purposes, including wetland enhancement, will contribute
to
the peace, health, safety, and welfare of the people of the state
of
Washington. To the extent reclaimed water is appropriate
for
beneficial uses, it should be so used to preserve potable water
for
drinking purposes. Use of reclaimed water constitutes the
development
of new basic water supplies needed for future generations.
The legislature further finds and declares
that the use of
reclaimed water is not inconsistent with the policy of antidegradation
of state waters announced in other state statutes, including the
water
pollution control act, chapter 90.48 RCW and the water resources
act,
chapter 90.54 RCW.
The legislature finds that other states,
including California,
Florida, and Arizona, have successfully used reclaimed water to
supplement existing water supplies without threatening existing
resources or public health.
It is the intent of the legislature that
the department of ecology
and the department of health undertake the necessary steps to encourage
the development of water reclamation facilities so that reclaimed
water
may be made available to help meet the growing water requirements
ofthe state.
The legislature further finds and declares
that reclaimed water
facilities are water pollution control facilities as defined in
chapter
70.146 RCW and are eligible for financial assistance as provided
in
chapter 70.146 RCW. The legislature finds that funding demonstration
projects will ensure the future use of reclaimed water. The
demonstration projects in RCW 90.46.110 are varied in nature and
will
provide the experience necessary to test different facets of the
standards and refine a variety of technologies so that water purveyors
can begin to use reclaimed water technology in a more cost-effective
manner. This is especially critical in smaller cities and
communities
where the feasibility for such projects is great, but there are
scarce
resources to develop the necessary facilities.
Sec. 202. RCW 90.46.030 and 1992
c 204 s 4 are each amended to
read as follows:
(1) The department of (({- health -}))
{+ ecology +} shall, in
coordination with the department of (({- ecology -})) {+ health
+},
adopt (({- a single set of standards, procedures, and guidelines
on or
before August 1, 1993 -})) {+ rules by December 31, 2000 +}, for
the
industrial and commercial use of reclaimed water.
(2) The department of (({- health -}))
{+ ecology +} may issue a
reclaimed water permit for industrial and commercial uses of reclaimed
water to the generator of reclaimed water who may then distribute
the
water, subject to provisions in the permit governing the location,
rate, water quality, and purposes of use.
(3) The department of (({- health -}))
{+ ecology +} in
consultation with the advisory committee established in RCW 90.46.050,
shall develop recommendations for a fee structure for permits issued
under subsection (2) of this section. Fees shall be established
in
amounts to fully recover, and not exceed, expenses incurred by
the
department of health {+ and the department of ecology +} in processing
permit applications and modifications, monitoring and evaluating
compliance with permits, and conducting inspections and supporting
the
reasonable overhead expenses that are directly related to these
activities. (({- Permit fees may not be used for research
or
enforcement activities. The department of health shall not
issue
permits under this section until a fee structure has been established.-}))
(4) A permit under this section for use
of reclaimed water may be
issued only to a municipal, quasi-municipal, or other governmental
entity or to the holder of a waste discharge permit issued under
chapter 90.48 RCW.
(5) The authority and duties created in
this section are in
addition to any authority and duties already provided in law with
regard to sewage and wastewater collection, treatment, and disposal
for
the protection of health and safety of the state's waters.
Nothing in
this section limits the powers of the state or any political
subdivision to exercise such authority.
Sec. 203. RCW 90.46.040 and 1992
c 204 s 5 are each amended to
read as follows:
(1) The department of ecology shall, in
coordination with the
department of health, adopt (({- a single set of standards, procedures,
and guidelines, on or before August 1, 1993 -})) {+ rules by December
31, 2000 +}, for land applications of reclaimed water.
(2) A permit is required for any land
application of reclaimed
water. The department of ecology may issue a reclaimed water
permit
under chapter 90.48 RCW to the generator of reclaimed water who
may
then distribute the water, subject to provisions in the permit
governing the location, rate, water quality, and purpose of use.
The
department of ecology shall not issue more than one permit for
any
individual land application of reclaimed water to a single generator.
(3) In cases where the department of ecology
determines, in land
applications of reclaimed water, that a (({- significant -})) risk
to
the public health exists, the department shall refer the application
to
the department of health for review and consultation and the department
of health may require fees appropriate for review and consultation
from
the applicant pursuant to RCW 43.70.250.
(4) A permit under this section for use
of reclaimed water may be
issued only to a municipal, quasi-municipal, or other governmental
entity or to the holder of a waste discharge permit issued under
chapter 90.48 RCW.
(5) The authority and duties created in
this section are in
addition to any authority and duties already provided in law.
Nothing
in this section limits the powers of the state or any political
subdivision to exercise such authority.
{+ NEW SECTION. +} Sec. 204.
A new section is added to chapter
90.46 RCW to read as follows:
The departments of ecology and health
may adopt rules as necessary
to carry out the intent of this chapter. If rules are adopted,
the
rules shall identify permit and design approval requirements under
chapters 43.20, 70.116, 70.119A, 70.142, 90.03, 90.44, and 90.48
RCW
applicable to the generation and distribution of reclaimed water,
and
identify criteria to determine when the use of reclaimed water
is
feasible to replace nonpotable water uses.
Sec. 205. RCW 90.46.120 and 1997
c 444 s 1 are each amended to
read as follows: (({- The owner of a wastewater
treatment facility that is
reclaiming water with a permit issued under this chapter has the
exclusive right to any reclaimed water generated by the wastewater
treatment facility. Use and distribution of the reclaimed
water by the
owner of the wastewater treatment facility is exempt from the permit
requirements of RCW 90.03.250 and 90.44.060. -})) Revenues
derived
from the reclaimed water facility shall be used only to offset
the cost
of operation of the wastewater utility fund or other applicable
source
of system-wide funding.
If the proposed use or uses of reclaimed
water are intended to
augment or replace potable water supplies or {+ will +} create
the
potential for the development of additional potable water supplies,
such use or uses shall be considered in the development of the
regional
water supply plan or plans addressing potable water supply service
by
multiple water purveyors. {+ This may include water system
plans and
coordinated water system plans adopted under chapters 43.20 and
70.116
RCW. +} The owner of a wastewater treatment facility that
proposes to
reclaim water shall be included as a participant in the development
of
such regional water supply (({- plan or -})) plans {+ and water
system
plans. The water supply planning activities shall be developed
and
coordinated to ensure that opportunities for reclaimed water are
evaluated and that proposals for construction in public rights
of way
delineated within the plan consider infrastructure needed to distribute
reclaimed water. Wastewater plans adopted under chapter 90.48
RCW
shall include a statement of certification that reclamation and
reuse
elements in applicable regional water supply plans and water system
plans have been fully considered and accounted for with regard
to the
need for future distribution of reclaimed water +}.
{+ NEW SECTION. +} Sec. 206.
A new section is added to chapter
90.46 RCW to read as follows:
The department of ecology, in consultation
with the department of
health and water purveyors, shall adopt rules by December 31, 2000,
establishing criteria to determine when the use of reclaimed water
is
feasible to replace potable water supplied for nonpotable water
use.
Local governments may adopt ordinances requiring the use of reclaimed
water for nonpotable uses when determined feasible.
Sec. 207. RCW 90.46.130 and 1997
c 444 s 4 are each amended to
read as follows:
{+ (1) Except as provided in subsection
(2) of this section, the
owner of a wastewater treatment facility that is reclaiming water
with
a permit issued under this chapter has the exclusive right, subject
to
the terms of the permit and as otherwise provided in this chapter,
to
any reclaimed water generated by the wastewater treatment facility.
Upon securing a permit under this chapter, the use and distribution
of
the reclaimed water by the owner of the wastewater treatment facility
is exempt from the requirements to obtain a permit under RCW 90.03.250
and 90.44.060 and the requirements to obtain approval of a change
or
amendment of a water right under RCW 90.03.380, 90.03.383, 90.03.390,
90.44.100, or 90.44.105.
(2) If the state of Washington or the
United States provides
funding for the construction of reclaimed water facilities, the
state
shall establish a trust water right under chapter 90.38 or 90.42
RCW
for the fraction of the reclaimed water attributable to such funding.
The priority of use for the state's share of reclaimed water is
instream flow restoration and enhancement. The department
may accept
an alternate water right from the reclaimed water project owner
in lieu
of reclaimed project water if the alternate water right is more
advantageous for instream flow restoration.
(3) +} Facilities that reclaim water under
this chapter shall not
impair any existing water right (({- downstream from any freshwater
discharge points of such facilities unless compensation or mitigation
for such impairment is agreed to by the holder of the affected
water
right -})) {+ unless the holder of the water right is equitablycompensated
+}.
PART III
WATER RIGHT CHANGES AND TRANSFERS
Sec. 301. RCW 90.03.380 and 1997
c 442 s 801 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 -})) {+ water +} is used(({-
:
PROVIDED, HOWEVER, That -})){+ . However, +} 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 -})) {+ the +} 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 -})) {+ the +} 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 most
recent
five-year period of continuous beneficial use of the water right.
-}))
{+ (2) +} Before any transfer of (({-
such -})) {+ a +} 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 -})) {+ on a form prescribed by the
department. The application must be accompanied with the
applicable
fee as provided by RCW 90.03.470. 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 -}))
{+ (3) The department shall make a tentative
determination as to
the validity and extent of the water right proposed to be transferred
or changed, including the reasonable and beneficial use of water
actually used. In its determination, the department shall
consider
whether all or any portion of the asserted water right has been
lost by
nonuse under common law abandonment or forfeiture under chapter
90.14
RCW, and whether any portion of the water diverted or withdrawn
constitutes the waste of water. If the department determines
that any
portion of the current or former use of water under the asserted
water
right proposed for change or transfer is not a water right, or
constitutes waste of water, that portion of the right shall not
be
approved for change or transfer. If the department determines
that (a)
the asserted water right is valid, (b) the water right as proposed
to
be changed will be for beneficial use, (c) the public interest
will not
be detrimentally affected by the change, and (d) the +} transfer
or
(({- such -})) change may be made without injury or detriment to
existing rights, the department shall issue to the applicant {+
an
authorization to make the change. Upon determining that the
change has
been completed and water has been put to beneficial use in accordance
with the authorization, the department shall issue +} 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 -})) {+ must +} 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.
(({- (2) -})) {+ (4) +} 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) -})) {+ (5) +} 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.
{+
The acreage irrigated within an irrigation district may not be
expanded
through use of conserved water unless approval has been received
from
the department in accordance with section 302 of this act. +}
(({- (4) -})) {+ (6) The department may
approve an application for
change that proposes to transfer or change an inchoate water right
permit or certificate held by a public water system in accordance
with
section 408 of this act.
(7) +} 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.
{+ NEW SECTION. +} Sec. 302.
A new section is added to chapter
90.03 RCW to read as follows:
(1) After the effective date of this section,
if a person holding
a water right established under the laws of the state of Washington
conserves water or proposes to conserve water, the person may,
in
accordance with RCW 90.03.380, apply to the department for a change
in
purpose or place of use or point of diversion or any combination
thereof for the purpose of using conserved water for a new purpose
or
in a place not originally authorized for beneficial use.
The maximum
acreage allowed to be irrigated may be expanded and the place of
use
and the population served by the water right may be increased beyond
the original intended place of use and purpose of use of the water
right only as provided by this section.
(2) If the proposed change results in
no increase in the annual
consumptive quantity of water used under the water right, the person
proposing to make the change may retain for new use all of the
transferable conserved water. For conservation projects in
which the
annual consumptive quantity of water will be increased, the person
proposing the change or transfer must agree in writing to convey
to the
state of Washington the water right for at least one-half of the
transferable net water savings for the purpose of establishing
a trust
water right under chapter 90.38 or 90.42 RCW as applicable.
If state
or federal funds will be employed in the conservation project,
the
proportion of the water savings that must be conveyed to the state
of
Washington shall be equivalent to the ratio of the state or federal
funding to the overall project cost, but in no case less than one-half
of the net water savings. The person proposing to change
or transfer
and use the remaining water on additional or different lands may
do so
only under an approved change to the water right issued by the
department under RCW 90.03.380, 90.03.383, 90.03.390, or 90.44.100.
Reallocation and use of conserved water under this section shall
not
impair any existing water right.
(3) The department may waive the requirement
to convey a trust
water right to the state only where there is no discernible public
purpose to be benefited by establishment of a trust water right
for
those waters. In such case, in lieu of conveying a trust
water right,
the person proposing the conservation project must remit to the
state
treasurer a payment equal to the value of the proportion of the
water
right not conveyed to the state. The amount of this payment
shall be
determined by a licensed independent real estate appraiser selected
by
agreement of the department and the applicant. The basis
of the
appraisal shall be the value of the proportion of the conserved
water
not conveyed to the state in consideration of the economic value
of
water in the immediate area where the water right is used.
The cost of
the appraisal shall be shared equally by the department and the
applicant. Any funds conveyed to the state under this section
shall be
deposited in the state stream flow restoration account established
in
section 1005 of this act for use in purchasing or leasing trust
waterrights.
{+ NEW SECTION. +} Sec. 303.
A new section is added to chapter
90.03 RCW to read as follows:
The department is authorized to process
and render decisions on
applications for change or transfer under this chapter and amendments
of ground water rights under chapter 90.44 RCW as a matter of higher
priority than processing and rendering decisions on applications
for
new water rights. Any application for a new water right for
which a
permit decision has not been made by the department at the time
a
transfer, change, or amendment is approved shall not be considered
an
existing water right subject to analysis as to whether the application
may be injured, impaired, or detrimentally affected by the transfer
orchange.
Sec. 304. RCW 90.42.080 and 1993
c 98 s 4 are each amended to read
as follows:
(1) The state may acquire all or portions
of existing water rights,
{+ for the purposes of this chapter, +} by purchase, {+ lease,
+} gift,
{+ financing water conservation, reclaiming water, or as a consequence
of the artificial storage and discharge of ground water, +} or
{+ by +}
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.
(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) The provisions of RCW 90.03.380 and
90.03.390 apply to
transfers of water rights under this section.
(({- (5) 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. -}))
{+ NEW SECTION. +} Sec. 305.
A new section is added to chapter
90.03 RCW to read as follows:
A person may acquire and hold a water
right for a beneficial
instream purpose or purposes if the department approves a transfer
or
change of the water right under RCW 90.03.380 or 90.03.390.
An
application for change must be filed on a form prescribed by the
department. Notice of the application shall be provided in
the same
manner as any other application filed under this chapter.
An instream
flow right established in this manner need not involve any diversion
of
water or other physical works. An instream flow right is
appurtenant
to a stream or reach of stream specified in the department's change
approval. When changed or transferred in this manner, the
water right
shall retain its original priority date.
PART IV
PUBLIC WATER SUPPLY
{+ NEW SECTION. +} Sec. 401.
A new section is added to chapter
90.03 RCW to read as follows:
It is in the public interest for public
water systems' certificated
water rights that document a combination of water that has been
put to
beneficial use and water that has not been put to beneficial use
to be
managed and regulated in a manner that:
(1) Provides for concurrent development
and use of an inchoate
water right permit and the restoration of instream flows in geographic
areas with salmonid stocks listed or proposed for listing as threatened
or endangered under the federal endangered species act, or with
stocks
listed as critical or depressed under the state salmon and steelhead
stock inventory;
(2) Provides for the concurrent use of
an inchoate water right
permit and the retention of instream flows to provide for the
preservation of wildlife, fish, scenic, aesthetic, and navigational
values and other environmental values in geographic areas without
salmonid stocks listed or proposed for listing as threatened or
endangered under the endangered species act or with stocks listed
as
critical or depressed under the state salmon and steelhead stockinventory;
(3) Provides clarity and certainty regarding
the legal status of
those rights for purposes of planning for water supply, land use,
watershed management, and growth management;
(4) Allows public water systems, through
existing planning and
regulatory processes, the certainty required for public water systems
to operate in a safe, reliable, and effective manner consistent
with
their duties to:
(a) Implement programs that promote the
efficient management and
use of water resources;
(b) Provide water service in a timely
and reasonable manner; and
(c) Respect and protect the ecological
system affected by their
water withdrawals;
(5) Ensures the effective use of existing
water supplies through
water conservation; and
(6) Promotes the formation of satellite
management agencies to
facilitate regional management of public water supplies.
Sec. 402. RCW 90.03.330 and 1987
c 109 s 89 are each amended to
read as follows:
{+ (1) +} Upon a showing satisfactory
to the department that any
appropriation has been perfected in accordance with the provisions
of
this chapter, it shall be the duty of the department to issue to
the
applicant a certificate stating such facts in a form (({- to be
-}))
prescribed by (({- him -})) {+ the department +}, and such certificate
shall (({- thereupon -})) be recorded with the department.
{+ Upon the
request of a public water system, the department shall issue
incremental certificates of water right, not more than once every
six
years, that reflect either instantaneous or annual quantities of
water,
or both, perfected by actual beneficial use. Pumping or diversion
records, meter data, or other reasonable information showing the
extent
of actual beneficial use of water shall accompany the request.
+} Any
original water right certificate issued, as provided by this chapter,
shall be recorded with the department and thereafter, at the expense
of
the party receiving the (({- same -})) {+ certificate +}, be {+
transmitted +} by the department (({- transmitted -})) to the county
auditor of the county or counties where the distributing system
or any
part thereof is located(({- , and -})){+ . The certificate
shall +} be
recorded in the office of such county auditor, and thereafter be
transmitted to the (({- owner thereof -})) {+ certificate holder
+}.
{+ (2) Public water system certificates
of water right that
document a combination of water that has been put to beneficial
use and
water that has never been put to use, that have department of health
approval for the source for which the right is associated, and
for
which the entity holding the certificate has constructed facilities
in
place to use the water authorized by the water right, shall be
administered in the following manner:
(a) Any instantaneous or annual quantity
of water that has been
perfected by application of water to actual beneficial use prior
to the
effective date of this section shall remain a certificated right
in
good standing under this section subject to issuance of a superseding
certificate under section 405 of this act. The application
of water to
beneficial use must be shown by pumping or diversion records, meter
data, or other reasonable information showing the extent of actual
beneficial use.
(b) Any instantaneous or annual quantity
of water not perfected by
actual beneficial use prior to the effective date of this section
is
reinstated as a water right permit within the meaning of this chapter
and the holder of the permit is authorized to continue development
and
use of the inchoate water right. The reinstated permit shall
be
administered by the department as an inchoate right in permit status
in
good standing, with a priority date as of the original application,
subject to the requirements of section 407 of this act.
(3)(a) For a public water system holding
a permit reinstated by
this section and having a department of health approved number
of
connections, and for which the original water right application
filing
was for a discrete number of connections, water use by up to the
department of health approved number of connections as of the effective
date of this section is allowed within the existing water service
area
of the public water system. If the public water system does
not have
an existing service area established under chapter 43.20 or 70.116
RCW,
the place of use as authorized under the original certificate shall
be
the place of use for water that is reinstated to permit status
under
this section.
(b) For any public water system holding
permits reinstated by this
section and having a department of health approved number of equivalent
residential units, and for which the original water right application
filing was made for a discrete number of connections or a then
current
population and future requirements of the municipality or community,
water services shall be allowed up to the number of equivalent
residential units approved by the department of health as of the
effective date of this section for the existing service area of
the
public water system as established under chapter 43.20 or 70.116
RCW.
However, any water supply interties must also comply with RCW90.03.383.
(c) For any public water system holding
permits reinstated by this
section with an unspecified number of connections in its department
of
health approved water system plan, and the original application
filing
was made for then current population and future requirements of
the
municipality or community, water services shall be allowed to satisfy
the existing retail service area as established under chapter 43.20
or
70.116 RCW, retail service area in-filling, and existing wholesale
water delivery as of the effective date of this section.
However, any
interties must also comply with RCW 90.03.383. +}
Sec. 403. RCW 90.03.015 and 1987
c 109 s 65 are each amended to
read as follows:
(({- As used in this chapter: -})) {+
The definitions in this
section apply throughout this chapter unless the context clearly
requires otherwise. +}
(1) "Department" means the department
of ecology(({- ; -})){+ . +}
(2) "Director" means the director of ecology(({-
; and -})){+ . +}
(3) "Person" means any firm, association,
water users' association,
corporation, irrigation district, or municipal corporation, as
well as
an individual.
{+ (4) "Inchoate water right" means an
incomplete appropriative
right in good standing so long as the requirements of law are beingfulfilled.
(5) "Public water system" has the meaning
provided in RCW70.119A.020. +}
Sec. 404. RCW 39.34.020 and 1985
c 33 s 1 are each amended to read
as follows: For the purposes of this chapter,
the term "public agency" shall
mean any agency, political subdivision, or unit of local government
of
this state including, but not limited to, municipal corporations,
quasi
municipal corporations, special purpose districts, (({- and -}))
local
service districts{+ , and public water systems as defined in RCW
70.119A.020 +}; any agency of the state government; any agency
of the
United States; any Indian tribe recognized as such by the federal
government; and any political subdivision of another state.
The term "state" shall mean a state of
the United States.
{+ NEW SECTION. +} Sec. 405.
A new section is added to chapter
90.03 RCW to read as follows:
(1) Any public water system asserting
that it holds a certificate
that documents a combination of water put to beneficial use and
water
not yet put to beneficial use shall provide evidence to the department
demonstrating that the criteria in subsection (2) of this section
are
met such that a superseding certificate and water rights permit
should
be issued. If the department, upon reviewing a public water
system
plan or other applicable information, determines that the system
has an
inchoate water right as provided in RCW 90.03.330, the department
shall
issue a superseding certificate for the portion of the right that
has
been put to beneficial use and shall issue a permit for the inchoate
portion of the water right that is reinstated to permit status.
The
department shall condition permits reinstated by RCW 90.03.330
with the
performance standards created by section 407 of this act and a
development schedule. The development schedule shall be twenty
years
from the effective date of this section with the option to extend
the
schedule if good cause is shown under RCW 90.03.320, except that
the
department may:
(a) Authorize a development schedule longer
than twenty years, but
not more than fifty years, if a planned need is demonstrated, and
(i)
a withdrawal facility with a hydraulic capacity beyond that needed
for
twenty years was constructed, or (ii) debt service requirements
extend
for such a period;
(b) Authorize a development schedule of
less than twenty years if
the permittee, pursuant to reasonable diligence, can perfect inchoate
water right quantities by actual beneficial use in a shorter period
oftime; or
(c) Deny any time for further development
if there is no
demonstrated need for the water based on the water system plan
or other
applicable information.
(2) Upon any determination of noncompliance
with the performance
standards created by section 407 of this act, the permittee shall
be
granted, by written notice, a reasonable period of time to effect
compliance. If a public water system receiving such a notification
disagrees with the department's determination of a reasonable time
for
compliance, it may, at its election, initiate nonbinding mediation
with
the department to resolve the dispute. After mediation, if
the dispute
is not resolved, the state shall issue the permit to effect the
performance standards. The permit is appealable to the pollution
control hearings board.
(3) At the end of the construction schedule
authorized in the
permit, the permit holder may request an extension of time only
as
provided in RCW 90.03.320.
Sec. 406. RCW 90.03.386 and 1991
c 350 s 2 are each amended to
read as follows:
{+ (1) +} Within service areas established
pursuant to chapters
43.20 and 70.116 RCW, the department of ecology and the department
of
health shall coordinate approval procedures to ensure compliance
and
consistency with the approved water system plan.
{+ (2) An application for change of water
right may be approved to
establish a common service area for the use of existing water rights
across multiple service areas that have been established under
chapters
43.20 and 70.116 RCW. The department of ecology and the department
of
health shall coordinate review and approval procedures to ensure
compliance and consistency with an approved coordinated water system
plan or regional water plan for any common place of use proposal.
All
water rights for public water supply within the proposed common
service
area shall be evaluated as part of the proposal. +}
{+ NEW SECTION. +} Sec. 407.
A new section is added to chapter
90.03 RCW to read as follows:
(1) Any permittee with a water right permit
reinstated under
section 405 of this act must meet the performance standards of
this
subsection. Demonstration of compliance with performance
standards
shall be through existing planning programs and processes of the
department of health or ecology to the extent practicable.
All
permittees shall initially document compliance with the performance
standards not less than two years and not more than eight years
from
the effective date of this section to the department of ecology
and
then in its water system plan update, provided a water system plan
is
required. Any permittee not required to complete a water
system plan
shall demonstrate compliance in a reasonable, written format.
If the
permittee complies with the performance standards, it will be
considered in compliance with RCW 90.03.320. The performance
standardsare:
(a) Evidence demonstrating a need for
the water within the
development schedule specified by the permit consistent with demand
forecasts prepared in accordance with the demand forecasting methods
specified by the departments of ecology and health;
(b) Evidence that the water system's use
of water is fully
consistent with approved local land use planning within the constraints
of water availability and cost;
(c) Evidence that the water use meets
state conservation and water
use efficiency requirements existing at the time the documentation
issubmitted;
(d) Current information on how the utility's
recent and proposed
beneficial use of water under such permits is consistent with state
and
federal laws legally applicable to water use under the permit;
and
(e) Evidence of participation by the permittee,
to the extent
practicable, in watershed planning under chapter 90.82 RCW, coordinated
water system planning under chapter 70.119 RCW, or other collaborative
watershed planning efforts, if initiated.
(2) For the performance measures in subsection
(1) of this section,
the department of health is responsible for ensuring compliance
with
subsection (1)(a) through (c) of this section and the department
of
ecology is responsible for ensuring compliance with subsection
(1)(d)
and (e) of this section when the performance measures are identified
in
a water system plan. If no water system plan is required,
the
department of ecology is responsible for ensuring compliance with
all
performance measures.
(3) For public water systems with a source
of water that is either
a surface water source or a ground water source that is interconnected
with a surface water body that provides habitat for one or more
salmonid stocks that are listed or proposed for listing as threatened
or endangered under the federal endangered species act or with
stocks
listed as critical or depressed under the state salmon and steelhead
stock inventory, the public water system shall enter into and implement
an interlocal agreement with the departments of ecology and fish
and
wildlife as provided by chapter 39.34 RCW.
(a) The purpose of the interlocal agreement
is to identify and make
mutual commitments to:
(i) Take immediate actions to arrest the
further decline in fish
stock health and abundance;
(ii) Establish, protect, and restore an
instream flow that is
sufficient to ensure that the instream flow contributes to the
recovery
and maintenance of salmonid stocks. Any instream flows that
are
established in connection with an interlocal agreement for a water
resource inventory area, as defined by chapter 173-500 WAC, overlaying
the same geographic areas that received a grant from the department
under chapter 90.82 RCW shall be interim until such planning for
instream flow, if applicable, is complete under chapter 90.82 RCW.
Interim instream flows established shall be conservative with regard
to
preserving instream values;
(iii) Define a strategy to restore stream
flows to the established
instream flow; (iv) Establish benchmarks
or milestones that can be used to
objectively measure the success in the recovery and maintenance
of the
listed salmonid stocks; and
(v) Establish provisions for an adaptive
management approach to
modify the interlocal agreement to effect its goal.
(b) If an interlocal agreement is not
developed and signed by the
departments of ecology and fish and wildlife and the permittee
within
two years of the effective date of this section, the permittee's
use of
water from the effective date of this section under the permit
shall be
subject to applicable source instream flows existing as of the
effective date of this section created by rule. If instream
flows have
not been established or are insufficient, an instream flow shall
be
specified by the department in consultation with the department
of fish
and wildlife under RCW 75.20.050 by permit proviso, and any future
instream flows adopted or amended by the department.
(c) Within four years of the effective
date of this section, and
every three years thereafter, the department in consultation with
the
department of fish and wildlife, shall review the interlocal agreement
and its implementation to determine its effectiveness in contributing
to the recovery and maintenance of the listed salmonid stocks and
review the actions of all parties to implement the agreement.
If the
department of ecology determines by written findings that a permittee
who is party to the interlocal agreement has failed to abide by
the
agreement, it shall condition the use of water under the permit,
from
the effective date of this section, to applicable instream flows
existing as of the effective date of this section created by rule.
If
instream flows have not been established or are insufficient, an
instream flow shall be specified by the department in consultation
with
the department of fish and wildlife under RCW 75.20.050 by permit
proviso, and any future instream flows adopted or amended by thedepartment.
(d) If any permittee who is party to the
interlocal agreement
disagrees with any determinations made by the department under
this
section, the permittee may, at its election, initiate nonbinding
mediation with the department to resolve a dispute. After
mediation,
if the dispute is not resolved, the permittee may appeal any findings
made by the department to the pollution control hearings board.
(4) For any public water system permittee
in an area without stocks
listed as threatened or endangered under the endangered species
act and
without stocks listed as critical or depressed in the state salmon
and
steelhead stock inventory, the use of inchoate permits shall be
conditioned with instream flows established under chapter 90.22
or
90.54 RCW existing as of the effective date of this section, for
the
applicable source.
(5) Nothing in this section waives any
other requirement of the law
related to the use of water.
{+ NEW SECTION. +} Sec. 408.
A new section is added to chapter
90.03 RCW to read as follows:
The department shall approve an application
for change that
proposes to change or transfer an inchoate water right from one
public
water system to another or to expand the place of use of an existing
public water system if in addition to the requirements of RCW90.03.380:
(1) The proposed change will authorize
the use of water consistent
with a state-approved water system plan under chapter 43.20 RCW,
and
any approved comprehensive plan under chapter 36.70A or 36.70 RCW,
or
in the absence of such a plan, an approved plan under chapter 35.63
RCW. The department shall review water right issues concurrently
with
department of health review of the associated water system plan
describing any proposed transfer of water. Any transfer of
more than
two million gallons of water per day across a water resource inventory
area boundary must be consistent with an approved watershed plan
under
chapter 90.82 RCW, coordinated water system plan under chapter
70.116
RCW, or a similar plan. In the absence of such a plan, the
department
shall secure the approval of the counties affected by the transfer
prior to approval of the change;
(2) The public water system has implemented
water conservation
measures so that its water use meets or exceeds state performance
standards. For transfers of water by intertie, the receiving
public
water system's conservation performance must be equivalent to or
exceed
the sending system's performance; and
(3)(a) The use of water is subject to
instream flows to protect the
quality of the natural environment as provided in RCW 90.54.020(3)(a)
or 75.20.050 and a contribution to flow restoration is made as
provided
under (b) of this subsection. The department shall condition
the use
of water with any instream flow proviso on the water right proposed
for
change or any applicable instream flows contained in an adopted
rule,
unless the department, in consultation with the department of fish
and
wildlife, determines that the applicable instream flow is not
sufficient. Interim instream flows shall be established that
are
conservative with regard to preserving instream values. Any
interim
instream flow placed as a proviso on an approved change under this
section is effective until permanent instream flows are developed
under
a watershed planning program under chapter 90.82 RCW, or in the
absence
of such a program, by the department of ecology under chapters
90.22
and 90.54 RCW.
(b) In addition to the provisions of (a)
of this subsection, in
areas where adopted minimum instream flows have not been met in
eight
of the most recent ten years, the department shall require the
applicant to provide a contribution to assist in the restoration
of
aquatic ecosystems in the affected watershed or watersheds equal
to ten
percent of the volume or value of the unused water to be transferred.
The contribution can be a transfer of water to the state trust
water
rights program, or at the applicant's discretion a one-time monetary
contribution. For a monetary contribution, the applicant
proposing the
transfer shall remit to the state treasurer a payment based on
the
value of the water as determined by a licensed independent real
estate
appraiser selected by agreement of the department and the applicant.
The cost of the appraisal shall be borne by the applicant.
Any funds
conveyed to the state under this section shall be deposited in
the
state stream flow restoration account established in section 1005
of
this act for use in purchasing or leasing trust water rights.
{+ NEW SECTION. +} Sec. 409.
A new section is added to chapter
90.03 RCW to read as follows:
The department is authorized to enter
into agreements with
satellite management agencies to effect sound water management
and
public health objectives consistent with this chapter and chapters
43.20 and 70.116 RCW. The department shall seek expressions
of the
public interest in developing the agreements and any such agreement
shall not authorize any impairment of existing rights. Implementation
of the agreement must result in a net benefit to the public when
public
health and environmental values are evaluated together. In
developing
the agreements, the department shall consider, but is not limited
toconsidering:
(1) Benefits to regional water supplies;
(2) The effect of existing and future
withdrawals of ground water
under RCW 90.44.050;
(3) Appropriate mitigation or contingency
plans for water use
during low flow periods;
(4) Appropriate conservation and metering
practices;
(5) Water management responsibilities
proportional to the volume of
water being moved, if any; and
(6) Water management activities targeted
at establishment,
protection, and restoration of instream flows.
Sec. 410. 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.
{+ NEW SECTION. +} Sec. 411.
A new section is added to chapter
90.03 RCW to read as follows:
Nothing in section 401, 405, or 407 through
409 of this act or RCW
90.03.330, 90.03.015, 39.34.020, 90.03.386, or 90.03.383 shall
impair
any existing water right.
PART V
GROUND WATER EXEMPTION
Sec. 501. RCW 90.44.050 and 1987
c 109 s 108 are each amended to
read as follows:
(({- After June 6, 1945, -})) {+ N +}o
withdrawal of public ground
waters of the state shall be begun, nor shall any well or other
works
for such withdrawal be constructed, unless an application to
appropriate such waters has been made to the department and a permit
has been granted (({- by it as herein provided: EXCEPT, HOWEVER,
That
any withdrawal of public ground waters for stock-watering purposes,
or
for the watering of a lawn or of a noncommercial garden not exceeding
one-half acre in area, or for single or group domestic uses in
an
amount not exceeding five thousand gallons a day, or for an industrial
purpose in an amount not exceeding five thousand gallons a day,
is and
shall be exempt from the provisions of this section, but, to the
extent
that it is regularly used beneficially, shall be entitled to a
right
equal to that established by a permit issued under the provisions
of
this chapter: PROVIDED, HOWEVER, That the department from
time to time
may require the person or agency making any such small withdrawal
to
furnish information as to the means for and the quantity of that
withdrawal: PROVIDED, FURTHER, That at the option of the
party making
withdrawals of ground waters of the state not exceeding five thousand
gallons per day, applications under this section or declarations
under
RCW 90.44.090 may be filed and permits and certificates obtained
in the
same manner and under the same requirements as is in this chapter
provided in the case of withdrawals in excess of five thousand
gallons
a day -})) {+ except as provided in sections 502 and 503 of this
act+}.
{+ NEW SECTION. +} Sec. 502.
A new section is added to chapter
90.44 RCW to read as follows:
Within two years of the effective date
of this section, and
afterward whenever changing water supply and water use conditions
dictate, the department shall enter into agreements with each county
of
the state to establish the conditions under which various new
withdrawals of ground water would be exempt from the permit requirement
of RCW 90.44.050 for those watersheds or portions of watersheds
that
lie within that county's boundaries. In developing such agreements,
the department shall consult with the departments of health, fish
and
wildlife, and community, trade, and economic development, and the
department shall, as quickly as is practicable, adopt the conditions
established in such agreements as rules. The agreements shall
be
designed to meet both state and local objectives with respect to
land
and water resource management, including, but not limited to:
(1) Protecting and restoring salmonid
stocks that are listed or
proposed for listing as threatened or endangered under the federal
endangered species act or listed as critical or depressed under
the
state salmon and steelhead stock inventory;
(2) Complying with, and effectively implementing,
the provisions of
chapter 36.70A RCW;
(3) Providing for public health and safety
and promoting the use of
satellite management agencies to manage new public water systems;
(4) Promoting meaningful and effective
watershed planning andmanagement;
(5) Providing certainty about types of
water uses that would be
exempt from the permit requirements of RCW 90.44.050;
(6) Promoting cluster development to help
preserve open space; and
(7) Providing the means to address and
mitigate for any
environmental and natural resources effects caused by either single
or
multiple withdrawals exempted from the permit requirements of RCW90.44.050.
{+ NEW SECTION. +} Sec. 503.
A new section is added to chapter
90.44 RCW to read as follows:
(1) Except as specified in subsections
(2) and (3) of this section,
and until that time as an agreement or agreements under section
502 of
this act have been concluded with a particular county, but not
after
two years from the effective date of this section, a withdrawal
of
public ground waters in a total amount not exceeding five thousand
gallons per day is allowed for one or more of the following purposes:
(a) Stock watering up to the carrying
capacity of the land;
(b) Irrigation of a lawn or noncommercial
garden, the total area
irrigated not to exceed one-half acre;
(c) Single or group domestic use; or
(d) Industrial purposes.
The purposes listed in (a) through (d)
of this subsection are
exempt from the permit requirements of RCW 90.44.050, and, to the
extent water is beneficially used and in conformance with all other
applicable laws, are entitled to a right equal to that established
under the provisions of this chapter. The priority date for
a right
established under this section shall be the date that continuous
usage
of water for one or more of the exempted purposes set forth in
this
subsection is commenced. The department may require persons
or
entities making withdrawals under this section to furnish information
as to the means for and the quantity of their withdrawals.
(2) Until an agreement or agreements have
been concluded under
section 502 of this act, but not after two years from the effective
date of this section, for those watersheds or portions of watersheds
that lie within a county's boundaries but outside of the areas
identified in subsection (3) of this section, the county may adopt
criteria by local ordinance further restricting the use of the
exemption specified in subsection (1) of this section. Types
of
restrictions that may be placed upon use of the exemption include,
but
are not limited to: (a) Limiting use to
certain purposes;
(b) Limiting the amount of water that
can be used for one or more
purposes and the acreage that can be irrigated;
(c) Limiting the total number of exempt
uses or the total
quantities of water that may be withdrawn from the source, regardless
of purpose; and
(d) Limiting the term of use of the exemption
to the period until
water can be provided by a public water system.
(3) Until an agreement or agreements have
been concluded under
section 502 of this act, but not after two years from the effective
date of this section, for any areas of the state containing waters
in
which one or more salmonid stocks are listed or proposed for listing
as
threatened or endangered under the federal endangered species act,
or
are listed as critical or depressed under the state salmon and
steelhead stock inventory, the use of the permit exemption specified
in
RCW 90.44.050 is either prohibited, or the conditions under which
the
exemption can be used modified, if, within that area, depleted
stream
flows have been identified as a contributing factor in the decline
of
the fishery resource by a limiting factor analysis undertaken in
conjunction with the listing, and the aquifer or aquifers that
would
serve as the source for new water supplies would capture water
from one
or more of the surface water bodies that is experiencing depleted
stream flows. In those areas where water service from an
existing
public water system or approved satellite management agency is
reasonably available, use of the exemption is prohibited.
In those
areas where water service from an existing public water system
or
approved satellite management agency is not reasonably available,
the
exemption shall be used solely for reasonable single-family domestic
purposes in an amount not to exceed four hundred gallons per day
and
only until water can be provided by a public water system.
(4) This section expires two years from
the effective date of thissection.
Sec. 504. RCW 58.17.110 and 1995
c 32 s 3 are each amended to read
as follows:
(1) The city, town, or county legislative
body shall inquire into
the public use and interest proposed to be served by the establishment
of the subdivision and dedication. (({- It shall determine:
(a) If
appropriate provisions are made for, but not limited to, the public
health, safety, and general welfare, for open spaces, drainage
ways,
streets or roads, alleys, other public ways, transit stops, potable
water supplies, sanitary wastes, parks and recreation, playgrounds,
schools and schoolgrounds, and shall consider all other relevant
facts,
including sidewalks and other planning features that assure safe
walking conditions for students who only walk to and from school;
and
(b) whether the public interest will be served by the subdivision
anddedication.
(2) -})) A proposed subdivision and dedication
shall not be
approved unless the city, town, or county legislative body {+
determines and +} makes written findings that: (a) Appropriate
provisions are made for the public health, safety, and general
welfare
and for such open spaces, drainage ways, streets or roads, alleys,
other public ways, transit stops, potable water supplies, sanitary
wastes, parks and recreation, playgrounds, schools and schoolgrounds
and all other relevant facts, including sidewalks and other planning
features that assure safe walking conditions for students who only
walk
to and from school; and (b) the public use and interest will be
served
by the platting of such subdivision and dedication.
{+ (2) In making its determination and
written findings that
appropriate provisions have been made for potable water supplies,
the
city, town, or county legislative body shall promote the reliable
and
efficient delivery of safe and adequate water supply by ensuring
that:
(a) The number of new public water supply
systems established isminimized;
(b) The use of new wells for potable water
supply shall, until such
time as an agreement or agreements have been concluded under section
502 of this act, be in conformance with the provisions of section
503
of this act; and
(c) If a proposed subdivision is within
the future service area of
an existing public water system, as identified in an approved
coordinated water system plan under chapter 70.116 RCW or an approved
water system plan under chapter 43.20 RCW, and the system can provide
safe and reliable potable water to an applicant in a timely and
reasonable manner, under guidelines developed by the department
of
health, the city, town, or county shall require connection to that
system. If no existing public water system can provide service,
the
city, town, or county shall only approve new public water systems
in
conformance with RCW 70.119A.060(2).
(3) +} If (({- it -})) {+ the city,
town, or county legislative
body +} finds that the proposed subdivision and dedication make
(({-
such -})) appropriate provisions {+ as provided in subsections
(1) and
(2) of this section +} and that the public use and interest will
be
served, then the legislative body shall approve the proposed
subdivision and dedication. Dedication of land to any public
body,
provision of public improvements to serve the subdivision, and/or
impact fees imposed under RCW 82.02.050 through 82.02.090 may be
required as a condition of subdivision approval. Dedications
shall be
clearly shown on the final plat. No dedication, provision
of public
improvements, or impact fees imposed under RCW 82.02.050 through
82.02.090 shall be allowed that constitutes an unconstitutional
taking
of private property. The legislative body shall not as a
condition to
the approval of any subdivision require a release from damages
to be
procured from other property owners.
(({- (3) -})) {+ (4) +} If the preliminary
plat includes a
dedication of a public park with an area of less than two acres
and the
donor has designated that the park be named in honor of a deceased
individual of good character, the city, town, or county legislative
body must adopt the designated name.
Sec. 505. RCW 19.27.097 and 1995
c 399 s 9 are each amended to
read as follows: (1) Each applicant for
a building permit of a building
necessitating potable water shall provide evidence of an adequate
water
supply for the intended use of the building. Evidence may
be in the
form of a water right permit from the department of ecology, a
letter
from an approved {+ public +} water (({- purveyor -})) {+ system
+}
stating the ability to provide water, or another form sufficient
to
verify the existence of an adequate water supply. (({- In
addition to
other authorities, the county or city may impose conditions on
building
permits requiring connection to an existing public water system
where
the existing system is willing and able to provide safe and reliable
potable water to the applicant with reasonable economy and efficiency.
-})) {+ When an existing public water system can provide
safe and
reliable water to an applicant, the county or city shall require
connection to that system. +} An application for a water
right shall
not be sufficient proof of an adequate water supply.
(2) Within counties not required or not
choosing to plan pursuant
to RCW 36.70A.040, the county and the state may mutually determine
those areas in the county in which the requirements of subsection
(1)
of this section shall not apply. The departments of health
and ecology
shall coordinate on the implementation of this section. Should
the
county and the state fail to mutually determine those areas to
be
designated pursuant to this subsection, the county may petition
the
department of community, trade, and economic development to mediate
or,
if necessary, make the determination.
(3) {+ A county, city, or town shall require
an applicant for a
building permit to utilize water conservation measures consistent
with
local ordinances, including ordinances established in accordance
with
regional watershed plans adopted under chapter 90.82 RCW.
The
conservation measures may be in addition to those required by either
the department of health or the department of ecology.
(4) +} Buildings that do not need potable
water facilities are
exempt from the provisions of this section. The department
of ecology,
after consultation with local governments, may adopt rules to implement
this section, which may recognize differences between high-growth
and
low-growth counties.
PART VI
CAPTURE OF SURFACE WATER BY WELLS
{+ NEW SECTION. +} Sec. 601.
The legislature finds that
Washington's watersheds are unique and vary considerably in structure
and complexity. Watershed-specific information is required
to address
water use, planning, and management in each watershed. In
many basins
the connection between ground water and surface water makes further
development of the ground water resource problematic because of
the
risk of impairment to existing water rights, including established
instream flows. A technical advisory committee convened by
the
department of ecology determined that, in most watersheds in the
state,
withdrawals of ground water will, to some extent, capture stream
flow,
meaning that the withdrawal or withdrawals will draw water directly
from the stream or will intercept and reduce the amount of ground
water
discharge to the stream, or both. The committee also developed
a
framework for using the best available science and information
to
select a technical method appropriate to assess the relationship
between surface and ground water for a given area. These
methods can
then be used to determine the effects proposed ground water withdrawals
could have on existing rights, including established instream flows.
The legislature also finds that significant
opportunities exist to
further develop the ground water resources of the state provided
that
appropriate actions are taken to mitigate for any possible impairment
caused by new ground water withdrawals on those existing water
rights.
Because most new applications for ground water rights involve
withdrawals that could capture surface water, the issuance of new
ground water permits is often dependent upon an applicant offsetting
or
mitigating the effects of those proposed withdrawals on surface
water
sources. Thus there is a strong need to understand the types
of
mitigation measures that would effectively offset the effects caused
by
proposed withdrawals if new ground water permits are to be issued.
The legislature further finds that the
mitigation efforts should be
undertaken in a manner consistent with a set of principles that
promote
general watershed health and the preservation and enhancement of
the
fishery resource, particularly in those parts of the state that
contain
waters in which one or more salmonid stocks are listed or proposed
for
listing as threatened or endangered under the federal endangered
species act or listed as critical or depressed under the state
salmon
and steelhead stock inventory. The purpose of chapter . .
., Laws of
1999 (this act) is, in part, to establish that set of principles
under
which proposals to mitigate for the effects of new ground water
withdrawals can be evaluated.
{+ NEW SECTION. +} Sec. 602.
The department of ecology shall
convene a group consisting of representatives from major stakeholder
groups concerned with water resources management as well as scientists
recognized for their expertise in the fields of hydrology,
hydrogeology, fish biology, stream ecology, and stream restoration
to
review, assess, and recommend methods for mitigating the effects
caused
by proposed ground water withdrawals. The group shall consider
all
types of mitigation measures. The department of ecology shall
adopt
rules to implement the findings of the group and shall report on
the
group's progress, findings, and any recommendations for possible
legislative action to the legislature by December 31, 1999.
{+ NEW SECTION. +} Sec. 603.
A new section is added to chapter
90.03 RCW to read as follows:
(1) If the department determines that
an application for a water
right, transfer, or change filed under RCW 90.03.260 or 90.03.380
could
impair existing rights, including instream flows, the department
shall
apply the following principles to evaluate any mitigation proposal
included as part of the application:
(a) Preference shall be given to proposals
that would replace the
impaired quantity with a like amount of water, both in quantity
andquality;
(b) Preference shall be given to proposals
that would require a
minimum of ongoing maintenance in order to be effective;
(c) Preference shall be given to proposals
that would provide
benefits for the entire watershed;
(d) Preference shall be given to coordinated
mitigation proposals
submitted in conjunction with a group of applications when those
proposals would result in more effective mitigation, provide greater
benefits to the water resource, and promote better overall watershed
health. Submission of joint mitigation proposals shall not
alter the
priority dates of the respective applications.
(2) All proposals to mitigate potential
impairments that would be
created by a proposed diversion or withdrawal of water shall include
a
program to monitor the effectiveness of the mitigation measure.
{+ NEW SECTION. +} Sec. 604.
A new section is added to chapter
90.44 RCW to read as follows:
The department shall, when evaluating
an application for a water
right or an amendment filed under RCW 90.44.050 or 90.44.100 that
it
determines could impair existing rights, including instream flows,
apply the principles outlined in section 603 of this act.
The department shall condition the use
of water with any instream
flow proviso on the water right proposed for change or any applicable
instream flows contained in an adopted rule, unless the department,
in
consultation with the department of fish and wildlife, determines
that
the applicable instream flow is not sufficient using the best
information available at the time the decision is made. In
the absence
of established instream flows, or if existing instream flows are
determined by the department to be insufficient, the department
shall,
in consultation with the department of fish and wildlife, determine
interim instream flows for conditioning the unused water to be
transferred or changed. Interim instream flows shall be established
that are conservative with regard to preserving instream values.
Any
interim instream flow placed as a proviso on an approved change
under
this section shall be effective until permanent instream flows
are
developed pursuant to a watershed planning program under chapter
90.82
RCW, or in the absence of such program, by the department of ecology
under chapters 90.22 and 90.54 RCW.
Sec. 605. RCW 90.03.255 and 1997
c 360 s 2 are each amended to
read as follows:
The department shall, when evaluating
an application for a water
right, transfer, or change filed pursuant to RCW (({- 90.03.250
-})) {+
90.03.260 +} or 90.03.380 that includes provision for any water
impoundment or other resource management technique, take into
consideration the benefits and costs, including environmental effects,
of any water impoundment or other resource management technique
that is
included as a component of the application. The department's
consideration shall extend to any increased water supply{+ , or
mitigation for any impairment to existing rights, +} that results
from
the impoundment or other resource management technique, including
but
not limited to any recharge of ground water that may occur, as
a means
of making water available or otherwise offsetting the impact of
the
diversion of surface water proposed in the application for the
water
right, transfer, or change. Provision for an impoundment
or other
resource management technique in an application shall be made solely
at
the discretion of the applicant and shall not otherwise be made
by the
department as a condition for approving an application that does
not
include such provision.
This section does not lessen, enlarge,
or modify the rights of any
riparian owner, or any existing water right acquired by appropriation
or otherwise.
Sec. 606. RCW 90.44.055 and 1997
c 360 s 3 are each amended to
read as follows:
The department shall, when evaluating
an application for a water
right or an amendment filed pursuant to RCW 90.44.050 or 90.44.100
that
includes provision for any water impoundment or other resource
management technique, take into consideration the benefits and
costs,
including environmental effects, of any water impoundment or other
resource management technique that is included as a component of
the
application. The department's consideration shall extend
to any
increased water supply{+ , or mitigation for any impairment to
existing
rights, +} that results from the impoundment or other resource
management technique, including but not limited to any recharge
of
ground water that may occur, as a means of making water available
or
otherwise offsetting the impact of the withdrawal of ground water
proposed in the application for the water right or amendment in
the
same water resource inventory area. Provision for an impoundment
or
other resource management technique in an application shall be
made
solely at the discretion of the applicant and shall not be made
by the
department as a condition for approving an application that does
not
include such provision.
This section does not lessen, enlarge,
or modify the rights of any
riparian owner, or any existing water right acquired by appropriation
or otherwise.
PART VII
ENFORCEMENT
{+ NEW SECTION. +} Sec. 701.
A new section is added to chapter
39.34 RCW to read as follows:
By agreement under this chapter, the director
of the department of
ecology and the director of the department of fish and wildlife
are
each authorized to delegate and accept law enforcement powers or
functions to or from the other department.
Sec. 702. RCW 75.20.106 and 1993
sp.s. c 2 s 35 are each amended
to read as follows:
(({- The department may levy civil penalties
of up to one hundred
dollars per day for violation of any provisions of RCW 75.20.100
or
75.20.103. The penalty provided shall be imposed by notice
in writing,
either by certified mail or personal service to the person incurring
the penalty, from the director or the director's designee describing
the violation. Any person incurring any penalty under this
chapter may
appeal the same under chapter 34.05 RCW to the director.
Appeals shall
be filed within thirty days of receipt of notice imposing any penalty.
The penalty imposed shall become due and payable thirty days after
receipt of a notice imposing the penalty unless an appeal is filed.
Whenever an appeal of any penalty incurred under this chapter is
filed,
the penalty shall become due and payable only upon completion of
all
review proceedings and the issuance of a final order confirming
the
penalty in whole or in part.
If the amount of any penalty is not paid
within thirty days after
it becomes due and payable the attorney general, upon the request
of
the director shall bring an action in the name of the state of
Washington in the superior court of Thurston county or of any county
in
which such violator may do business, to recover such penalty.
In all
such actions the procedure and rules of evidence shall be the same
as
an ordinary civil action. All penalties recovered under this
section
shall be paid into the state's general fund. -}))
{+ (1) If any person or government agency
fails to follow the
requirements of obtaining hydraulic project approval under this
chapter
or fails to carry out any of the requirements or conditions of
a
hydraulic project approval issued under this chapter, the department
may issue an order to that person or government agency. The
order may
require the person or government agency to stop work on any or
all of
the activities subject to the hydraulic project approval, to correct
or
to restore the nonconforming site, or to both stop work and to
correct
or to restore the nonconforming site. Within twenty days
of service of
such an order or as provided by rule of the department extending
such
time, the person may file a written petition with the department
appealing the order, and this petition shall be treated as an
application for an adjudicative proceeding under chapter 34.05
RCW. In
the event of an appeal, a person or government agency may seek
interim
relief from an order under this section as provided in chapter
34.05RCW.
(2) The department may adopt rules to
designate that certain
violations of the terms or conditions of hydraulic project approval
are
an infraction to be punished as provided by RCW 77.15.160.
Any
punishment under chapter 77.15 RCW shall be supplemental to the
remedy
provided by subsection (1) of this section. +}
Sec. 703. RCW 77.15.300 and 1998
c 190 s 52 are each amended to
read as follows:
(1) A person is guilty of unlawfully undertaking
hydraulic project
activities if the person{+ :
(a) C +}onstructs any form of hydraulic
project or performs other
work on a hydraulic project and(({- :
(a) -})) {+ f +}ails to have a hydraulic
project approval required
under chapter 75.20 RCW for such construction or work; (({- or
-}))
(b) Violates any requirements or conditions
of the hydraulic
project approval for such construction or work{+ ;
(c) Violates any stop work or other order
issued pursuant to RCW
75.20.106 when that order has been either served on the person
or
posted at the site of the violation, except when the person acts
in
accordance with any relief under chapter 34.05 RCW pursuant to
a timely
appeal or timely relief from the department order; or
(d) Violates any rule governing small
scale mining adopted under
RCW 75.20.330, except when such a rule violation has been designated
as
an infraction by rule of the department +}.
(2) Unlawfully undertaking hydraulic project
activities is a gross
misdemeanor.
{+ NEW SECTION. +} Sec. 704.
A new section is added to chapter
90.58 RCW to read as follows:
Whenever there are terms or conditions
of the permit that are
required to be completed after occupancy or use commences, or carried
out as an ongoing part of occupancy or use, the local government
may
require the posting of a bond or other demonstration of financial
responsibility as a condition of approval with regard to compliance
with any one or all terms and conditions of approval. A local
government may include compliance reporting requirements in any
permit
authorizing development under this chapter. Submittal of
a report that
makes false claims regarding the compliance of the project with
permit
requirements may be considered grounds for revocation of the permit
and
may be considered a separate violation of chapter 90.58 RCW.
Sec. 705. RCW 90.03.600 and 1995
c 403 s 635 are each amended to
read as follows:
{+ (1) For the purpose of this section,
the "unauthorized use of
water" means the use, storage, diversion, or withdrawal of any
water
prior to the issuance of a permit when one is required; the use
of
water in a manner beyond the legal entitlement of the water right
claimant or holder of a water appropriation permit or certificate;
or
the willful waste of water.
(2) +} Except as provided in RCW 43.05.060
through 43.05.080 and
43.05.150, the power is granted to the department (({- of ecology
-}))
to levy civil penalties (({- of up to one hundred dollars per day
-}))
for violation of any of the provisions of this chapter and chapters
43.83B, 90.22, (({- and -})) 90.44{+ , 90.54, and 90.66 +} RCW,
and
rules, permits, and similar documents and regulatory orders of
the
department of ecology adopted or issued pursuant to such chapters.
{+
Each and every violation is a separate and distinct offense, and
in
case of a continuing violation, every day's continuance shall be
deemed
to be a separate and distinct violation. Every act of commission
or
omission that results in, aids, or abets in the violation shall
be
considered a violation under the provisions of this section and
subject
to the penalty as provided for in this section.
(3) There are three categories of violations:
(a) A minor violation is a violation that
does not seriously
threaten public health, safety, and the environment. Minor
violations
include, but are not limited to, paperwork violations such as failure
to provide metering records or other required water use records
uponrequest.
(b) A serious violation is a violation
that poses a critical or
serious threat to public health, safety, and the environment.
Serious
violations include, but are not limited to, unauthorized use of
water,
construction of any controlling works, ditch, canal, or well prior
to
obtaining a required water right permit, failure to comply with
the
instream flow or other provision of a permit or certificate, waste
of
water, failure to install a metering or measuring device as required,
failure to comply with a previously issued order, or repeated minorviolations.
(c) A major violation is the continued
unauthorized use of water
after prior written notice from the department to cease.
(4) The penalty for a minor violation
is not less than one hundred
dollars and not more than one thousand dollars per day. The
penalty
for a serious violation is not less than one thousand dollars and
not
more than ten thousand dollars per day. The penalty for a
major
violation is not less than ten thousand dollars and not more than
twenty-five thousand dollars per day.
(5) In determining the appropriate penalty
under subsection (3) of
this section, the department shall consider whether the person:
(a) Has demonstrated a general disregard
for public health and
safety through the number and magnitude of the violations;
(b) Has demonstrated a disregard for the
water resource laws,
rules, or permits in repeated or continuous violations; or
(c) Knew or reasonably should have known
of circumstances that
resulted in the violation.
(6) Penalties provided for in this section
shall be imposed under
RCW 43.21B.300. +} The procedures of RCW 90.48.144 shall
be applicable
to all phases of the levying of a penalty as well as review and
appeal
of the same.
{+ (7) Moneys collected under this section
shall be deposited in
the stream flow restoration account created in section 1005 of
thisact. +}
Sec. 706. RCW 43.21B.300 and 1993
c 387 s 23 are each amended to
read as follows:
(1) Any civil penalty provided in 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 shall be imposed by a notice in writing, either by certified
mail with return receipt requested or by personal service, to the
person incurring the penalty from the department, the administrator
of
the (({- office of marine safety -})) {+ integrated oil spill
prevention and response program +}, or the local air authority,
describing the violation with reasonable particularity. Within
fifteen
days after the notice is received, the person incurring the penalty
may
apply in writing to the department, the administrator, or the authority
for the remission or mitigation of the penalty. Upon receipt
of the
application, the department, the administrator, or authority may
remit
or mitigate the penalty upon whatever terms the department, the
administrator, or the authority in its discretion deems proper.
The
department or the authority may ascertain the facts regarding all
such
applications in such reasonable manner and under such rules as
it may
deem proper and shall remit or mitigate the penalty only upon a
demonstration of extraordinary circumstances such as the presence
of
information or factors not considered in setting the original penalty.
(2) Any penalty imposed under this section
may be appealed to the
pollution control hearings board in accordance with this chapter
if the
appeal is filed with the hearings board and served on the department,
the administrator, or authority thirty days after receipt by the
person
penalized of the notice imposing the penalty or thirty days after
receipt of the notice of disposition of the application for relief
frompenalty.
(3) A penalty shall become due and payable
on the later of:
(a) Thirty days after receipt of the notice
imposing the penalty;
(b) Thirty days after receipt of the notice
of disposition on
application for relief from penalty, if such an application is
made; or
(c) Thirty days after receipt of the notice
of decision of the
hearings board if the penalty is appealed.
(4) If the amount of any penalty is not
paid to the department or
the administrator within thirty days after it becomes due and payable,
the attorney general, upon request of the department or the
administrator, shall bring an action in the name of the state of
Washington in the superior court of Thurston county, or of any
county
in which the violator does business, to recover the penalty.
If the
amount of the penalty is not paid to the authority within thirty
days
after it becomes due and payable, the authority may bring an action
to
recover the penalty in the superior court of the county of the
authority's main office or of any county in which the violator
does
business. In these actions, the procedures and rules of evidence
shall
be the same as in an ordinary civil action.
(5) All penalties recovered shall be paid
into the state treasury
and credited to the general fund except those penalties imposed
pursuant to RCW 18.104.155, which shall be credited to the reclamation
account as provided in RCW 18.104.155(7), RCW 70.94.431, the
disposition of which shall be governed by that provision, RCW
70.105.080, which shall be credited to the hazardous waste control
and
elimination account, created by RCW 70.105.180, (({- and -})) RCW
90.56.330, which shall be credited to the coastal protection fund
created by RCW 90.48.390{+ , and RCW 90.03.600, which shall be
credited
to the stream flow restoration account, created by section 1005
of thisact +}.
Sec. 707. RCW 90.08.040 and 1977
c 22 s 1 are each amended to read
as follows: Where water rights of a stream
{+ or ground water source +} have
been adjudicated a stream patrolman shall be appointed by the director
of the department of ecology {+ (1) +} upon application of water
users
having adjudicated water rights in each particular water resource
making a reasonable showing of the necessity therefor(({- , which
application shall have been approved by the district water master
if
one has been appointed, -})){+ ; or (2) upon determination by the
department +} at such time, for such (({- stream -})) {+ water
source
+}, and for such periods of service as local conditions may indicate
to
be necessary to provide the most practical supervision and to secure
to
water users and owners the best protection in their rights.
{+ Subject
to the approval of the legislative body of the affected county
or
counties, the department may appoint a stream patrolman for any
area,
regardless of whether it has been adjudicated, if required to assure
proper supervision and protection of water rights, enforcement
of
minimum or base flows or other rules or regulations, or in response
to
a general decline in ground water levels. +}
The stream patrolman shall have the same
powers as a water master
appointed under RCW 90.03.060, but (({- his -})) {+ the patrolman's
+}
district shall be confined to the regulation of waters of a designated
(({- stream or streams -})) {+ source or sources +}. (({-
Such -})) {+
The +} patrolman shall be under the supervision of the director
or (({-
his -})) {+ the director's +} designated representative(({-
. He -}))
{+ and +} shall also enforce such special rules and regulations
as the
director may prescribe from time to time.
Sec. 708. RCW 90.08.060 and 1977
c 22 s 3 are each amended to read
as follows: The salary of the stream patrolman
shall be borne by the water
users receiving the benefits and shall be paid to the county or
counties in the following manner:
The county or counties (({- may -})) {+
shall +} assess each water
user for (({- his -})) {+ the users' +} proportionate share of
the
total stream patrolman expense in the same ratio that the amount
of
water diverted {+ or withdrawn +} by (({- him -})) {+ the user
+} bears
to the total amount diverted {+ or withdrawn +} from the (({- stream
-
})) {+ water source +} during each season, on an annual basis,
to
recover all such county expenses. The stream patrolman shall
keep an
accurate record of the amount of water diverted by each water user
coming under (({- his -})) {+ the patrolman's +} supervision.
On the
first of each month the stream patrolman shall present (({- his
-})) {+
the +} record of water diversion {+ and withdrawal +} to the county
or
counties for the preceding month. Where the water users are
organized
into an irrigation district or water users' association, such
organization may enter into an agreement with the county or counties
for direct payment to the stream patrolman in order to minimize
administrative costs.
Sec. 709. RCW 90.03.070 and 1987
c 109 s 70 are each amended to
read as follows: It shall be the duty of
the water master, acting under the
direction of the department, to divide in whole or in part, the
water
supply of (({- his -})) {+ the water master's designated +} district
among the several water conduits and reservoirs using (({- said
-})) {+
the +} supply, according to the right and priority of each,
respectively. (({- He -})) {+ The water master +} shall divide,
regulate{+ , +} and control the use of water within (({- his -}))
{+
the +} district by such regulation of headgates, conduits{+ , +}
and
reservoirs as shall be necessary to prevent the use of water in
excess
of the amount to which the owner of the right is lawfully entitled.
{+
The regulation shall be carried out in accordance with section
710 of
this act. The water master shall also enforce instream flow
levels
established by rule and instream flow conditions imposed on water
right
permits and certificates. +} Whenever, in the pursuance of
his {+ or
her +} duties, the water master regulates a headgate of a water
conduit
or the controlling works of a reservoir, he {+ or she +} shall
attach
to such headgate or controlling works a written notice, properly
dated
and signed, stating that such headgate or controlling works has
been
properly regulated and is wholly under his {+ or her +} control
and
such notice shall be a legal notice to all parties. In addition
to
dividing the available waters and supervising the stream patrolmen
in
(({- his -})) {+ the +} district, (({- he -})) {+ the water master
+}
shall enforce such rules and regulations as the department shall
from
time to time prescribe.
The county or counties in which water
master districts are created
shall deputize the water masters appointed hereunder, and may without
charge provide to each water master suitable office space, supplies,
equipment and clerical assistance as are necessary to the water
master
in the performance of his {+ or her +} duties.
{+ NEW SECTION. +} Sec.
A new section is added to chapter
43.27A RCW to read as follows:
The purpose of this section is to set
forth the powers of the
department to regulate the withdrawal or diversion of public waters
and
water or water rights related thereto, including regulation based
on
dates of priority or other pertinent factors. Regulatory
actions taken
under this section shall be based on examination and determination
by
the department or the court, as applicable, of the various water
rights
involved according to the department's records and other records
and
pertinent facts. The powers set forth in this section may
be exercised
whether or not a general adjudication relating to the water rights
involved has been conducted.
(1) In a regulatory situation (a) where
a water right or all water
rights proposed for regulation by the department, as well as any
right
or rights of a senior priority that the proposed regulation is
designed
to protect, is or are embodied in a certificate or certificates
issued
under RCW 90.03.240, 90.03.330, 90.38.040, 90.42.040, or 90.44.060
or
a permit or permits issued under RCW 90.03.290 or 90.44.060; (b)
where
a flow or level has been established by rule under chapter 90.22
or
90.54 RCW; or (c) where it appears to the department that public
waters
are being withdrawn without any right or other appropriate authority
whatsoever, the department in its discretion is authorized to regulate
the right or rights under either RCW 43.27A.190 or subsection (2)
of
this section.
(2) In a regulatory situation where one
or more of the water rights
proposed for regulation by the department, as well as any right
or
rights of a senior priority that the proposed regulation is designed
to
protect, is not or are not embodied in a permit or certificate
as
described in subsection (1) of this section, the department, in
its
sole and exclusive power to regulate, is authorized to bring an
appropriate action at law or in equity, including seeking injunctive
relief, as it may deem necessary. Where actions are brought
in a state
court, the actions shall be initiated in the superior court of
the
county where the point or points of diversion of the water right
or
rights proposed for regulation are located. If the points
of diversion
are located in more than one county, the department may bring the
action in a county where a point of diversion is located.
Notwithstanding the general adjudication procedures in RCW 90.03.110
through 90.03.245 and 90.44.220, the superior court shall make
findings
and a determination of the validity and priority of the water rights
held by the parties to resolve the regulatory situation.
The superior
court shall issue any necessary orders to implement its findings
and
determination, including injunctive relief, that it determines
is
necessary to regulate among the water rights.
(3) Nothing in this section authorizes
the department or the
superior court to accomplish a general adjudication of water rights
proceeding or the substantial equivalent of a general adjudication
of
water rights. The exclusive procedure for accomplishing a
general
adjudication of water rights is under RCW 90.03.110 through 90.03.245
or 90.44.220. (4) Nothing in this section
shall amend, revise, or repeal RCW
90.14.130 or 90.14.200.
(5) This section does not in any way modify
regulatory powers
previously placed with the department except as provided in subsections
(1) and (2) of this section.
PART VIII
LAND USE
{+ NEW SECTION. +} Sec. 801.
A new section is added to chapter
36.70A RCW to read as follows:
In addition to the elements required by
RCW 36.70A.070, a county or
city may include in its comprehensive plan an economic developmentelement
that:
(1) Promotes economic opportunity for
all citizens of the county or
city, especially for unemployed and disadvantaged persons and,
within
the capacities of the natural resources and consistent with other
requirements of this chapter, encourages appropriate types of growth
in
areas of the city or county experiencing insufficient economic
growth;
(2) Is within the capacities of the county's
or city's natural
resources, as determined in the land use element, including recognition
of the special treatment of shorelines of the state and water-dependent
uses, and its public facilities and public services, as determined
in
its capital facilities and utilities elements;
(3) Promotes the processing of permits
in a timely and fair manner;
(4) To the extent possible, is coordinated
with economic
development plans and strategies of economic development councils,
economic development districts, port districts, and other public
and
private organizations engaged in economic development planning;
(5) Encourages the reuse of underutilized
or abandoned property;and
(6) Provides for monitoring and adaptation
of the economic
development element based on successes and failures.
{+ NEW SECTION. +} Sec. 802.
A new section is added to chapter
36.70A RCW to read as follows:
(1) In addition to the elements required
by RCW 36.70A.070, a
county or city may include in its comprehensive plan an environmental
element that identifies and evaluates the environmental impacts
and
tradeoffs that can reasonably be foreseen by adoption and
implementation of the plan.
(2) The environmental element shall address
system and area-wide
improvements and environmental elements and cumulative impacts,
including critical areas and shorelines of the state, endangered
or
threatened species habitats, watersheds, water quality, ground
water
movement, air quality, historic and cultural resources, utilities,
transportation, and public services.
(3) Environmental analysis of plan alternatives
shall be conducted
in the draft plan. The draft plan should present reasonable
alternatives to allow comparison of the outcomes and tradeoffs
in terms
of impacts on the environment, levels of service, costs of
implementation, and rates of growth. The final plan should
summarize
the outcomes and tradeoffs that were made and found acceptable
in
selecting the final plan.
(4) The environmental element, at a minimum,
shall address the
following issues for each other element of the plan:
(a) Land use element. The analysis
of the land use element should
clearly analyze the designations of urban growth areas and boundaries,
both as to location and size, and the tradeoffs inherent in each
alternative and the impacts of the preferred designation of urban
growth areas and boundaries, as compared to alternates considered
and
the impacts of the planned growth with respect to infrastructure
and
capital facilities, public services, critical areas, shorelines
of the
state, air quality, water quality, and monitoring of development
and
density (land supply/use) to track the remaining land supply and
capacity in urban growth areas.
(b) Housing. The analysis of this
element should provide a
description of the expected impacts of projected growth on the
residential densities that may be required in existing residential
areas, an analysis of the community's ability to provide for affordable
housing needs, a program of ongoing review to monitor performance
of
plan implementation, and disclosure of the impacts on affordable
housing that can reasonably be expected to result from the
implementation of the other elements of the plan.
(c) Capital facilities. The analysis
of this element should
address the environmental costs of providing the established levels
of
services to serve projected development and growth, the consequences
of
projected growth and development on the established levels of service,
capital facilities and improvements to existing capital facilities
necessary to provide adequate public services to serve existing
and
projected growth and development, coordination and relationship
of the
capital facilities element with functional plans, such as storm
water,
flood plain management, service plans, comprehensive water plans,
shoreline master programs, watershed management plans, options
for
conservation, reuse, recycling to reduce environmental and capital
costs, and methods for ongoing monitoring of allocated and available
capacity of capital facilities.
(d) Transportation. The analysis
of this element should determine
whether the plan encourages efficient multimodal transportation
systems
that are based on regional priorities, coordinated with county
and city
plans, and whether the jurisdiction can accommodate projected growth
and development at established levels of service. The analysis
should
provide: (i) An analysis of the impacts of land use designations,
population densities, and development of existing and projected
growth
and development on the existing transportation system; (ii) ten-year
traffic forecasts based on land use decisions and projected rates
of
growth and development; (iii) an analysis of existing intergovernmental
coordination and methods to maintain or enhance regionally coordinated
levels of service; (iv) transportation demand management strategies
and
alternative transportation modes; and (v) a program to monitor
actual
use against projected use and capacity.
(e) Utilities. The analysis of this
element should address the
availability of service to existing and projected growth and
development at established levels of service, the economic and
environmental costs of providing services to existing and projected
growth and development at established levels of service, conservation
and other measures to reduce demand, and monitoring allocated and
available capacity of utility systems.
(f) Shorelines of the state. The
analysis of this element should
determine whether the comprehensive plan recognizes and protects
the
state-wide long-term interest in shoreline management consistent
with
the policy and procedures of chapter 90.58 RCW.
(g) Rural. The analysis of the rural
element should address land
use designations, including population densities and intensity
of
development in the rural area and the tradeoffs made in terms of
consequences to the size, location, and density of development
in urban
growth areas, impacts on affordable housing, impacts on local
government's ability to provide services, including transportation
and
utilities, impacts of development on viability of long-term
agricultural and forest resource lands, impacts of development
on air
quality, water quality, and critical areas, and impacts of residential
development on ability to fight forest fires on lands adjacent
toresidences.
(5) The environmental element may be prepared
as a separate
document, as a separate element in the plan, or integrated and
presented as a part of each other element of the plan.
{+ NEW SECTION. +} Sec. 803.
A new section is added to chapter
43.21C RCW to read as follows:
A county or city that prepares an environmental
element as provided
by section 802 of this act shall not be required to prepare the
detailed statement required by RCW 43.21C.031 on the comprehensiveplan.
PART IX
SHORELINE MANAGEMENT
Sec. 901. RCW 90.58.080 and 1995
c 347 s 305 are each amended to
read as follows:
{+ (1) +} Local governments shall develop
or amend(({- , within
twenty-four months after the adoption of guidelines as provided
in RCW
90.58.060, -})) a master program for regulation of uses of the
shorelines of the state consistent with the required elements of
the
guidelines adopted by the department. {+ For jurisdictions
that are
required to or choose to plan pursuant to RCW 36.70A.040, the master
program shall be reviewed for compliance with the guidelines and
adopted or amended as necessary by September 1, 2002, and at least
once
every five years thereafter. For all other jurisdictions,
except as
provided in subsection (2) of this section, the master program
shall be
adopted or amended within twenty-four months after the adoption
of
guidelines as provided in RCW 90.58.060.
(2) The department may adopt a schedule
for development or amending
of master programs by jurisdictions not planning pursuant to RCW
36.70A.040 that allows for a development or amendment period of
more
than twenty-four months, but not more than sixty months.
The schedule
shall be adopted as a part of the guidelines. The schedule
may
identify groups or classes of local government and establish different
schedules for such groups or classes. Prior to adoption of
a schedule,
each local government shall be notified in writing of the time
requirements applicable to it. The department shall give
full
consideration to comments made by local government on the proposed
schedule based on the criteria. +}
PART X
FUNDING
Sec. 1001. RCW 43.99E.015 and 1990
1st ex.s. c 15 s 8 are each
amended to read as follows:
For the purpose of providing funds for
the planning, acquisition,
construction, and improvement of water supply facilities within
the
state {+ and water conservation within those facilities +}, the
state
finance committee is authorized to issue general obligation bonds
of
the state of Washington in the sum of sixty-five million dollars,
or so
much thereof as may be required, to finance the improvements defined
in
this chapter and all costs incidental thereto. These bonds
shall be
paid and discharged within thirty years of the date of issuance
in
accordance with Article VIII, section 1 of the state Constitution.
No
bonds authorized by this chapter may be offered for sale without
prior
legislative appropriation of the proceeds of the bonds to be sold.
Sec. 1002. RCW 43.99E.030 and 1996
c 320 s 21 are each amended to
read as follows:
As used in this chapter, the term "water
supply facilities" means
domestic, municipal, industrial, and agricultural (and any associated
fishery, recreational, or other beneficial use) water supply or
distribution systems including but not limited to all equipment,
utilities, structures, real property, and interests in and improvements
on real property necessary for or incidental to the acquisition,
construction, installation, or use of any such water supply or
distribution system.
As used in this chapter, the term "public
body" means the state of
Washington or any agency, political subdivision, taxing district,
{+
local improvement district, +} or municipal or public corporation
thereof; a board of joint control; an agency of the federal government;
and those Indian tribes which may constitutionally receive grants
or
loans from the state of Washington.
Sec. 1003. RCW 43.83B.300 and 1988
c 47 s 1, 1988 c 46 s 2, and
1988 c 45 s 1 are each reenacted and amended to read as follows:
The legislature finds that the fundamentals
of water resource
policy in this state must be reviewed by the legislature to ensure
that
the water resources of the state are protected and fully utilized
for
the greatest benefit to the people of the state of Washington.
The
legislature further finds that it is necessary to provide the
department of ecology with emergency powers to authorize withdrawals
of
public surface and ground waters, including dead storage within
reservoirs, on a temporary basis, and construction of facilities
in
relation thereto, in order to alleviate emergency water supply
conditions arising from the drought forecast for the state of
Washington during 1977 and during 1987 through 1989.
The legislature further finds that there
is a continuing water
supply shortage in many areas of the state and that there is an
urgent
need to assure the survival of irrigated crops and of the state'sfisheries.
The legislature further finds that in
addition to water storage
facilities or other augmentation programs, improved efficiency
of water
use could provide an important new supply of water in many parts
of the
state with which to meet future water needs and that improved
efficiency of water use should receive greater emphasis in the
management of the state's water resources.
{+ The legislature further finds that
it is in the interest of
Washington state citizens to be better prepared for future droughts.
Investments in water conservation and efficiency projects can result
in
conserved water that can be used to alleviate drought conditions
and to
conserve instream flows to benefit threatened and endangered fish
species. Other benefits include improvements in water quality,
public
health, recreation, and habitat. +}
In order to study the fundamentals of
water resource policy of the
state and to provide needed moneys for the planning, acquisition,
construction, and improvement of water supply facilities{+ , drought
preparedness, +} and for other appropriate measures to assure the
survival of irrigated crops and/or the state's fisheries to alleviate
emergency water supply conditions arising from droughts occurring
from
time to time in the state of Washington, and to carry out a
comprehensive water use efficiency study for the state of Washington,
the state finance committee is authorized to issue general obligation
bonds of the state of Washington in the sum of eighteen million
dollars, or so much thereof as may be required to finance such
projects, and all costs incidental thereto. No bonds authorized
by
this section and RCW 43.83B.360 through 43.83B.375 shall be offered
for
sale without prior legislative appropriation, and these bonds shall
be
paid and discharged within thirty years of the date of issuance
in
accordance with Article VIII, section 1 of the state Constitution.
{+ NEW SECTION. +} Sec. 1004.
A new section is added to chapter
43.83B RCW to read as follows:
The state drought preparedness account
is created in the state
treasury. Six million eight hundred thousand dollars is transferred
from the state emergency water projects revolving account to establish
the drought preparedness account. Five hundred thousand dollars
will
remain in the state emergency water projects revolving account
for its
original purpose or purposes. Moneys in the state drought
preparedness
account may be spent only after appropriation. Expenditures
from the
state drought preparedness account may be used only for the purposes
specified in section 104 of this act.
{+ NEW SECTION. +} Sec. 1005.
A new section is added to chapter
90.42 RCW to read as follows:
The state stream flow restoration account
is created in the state
treasury. All receipts from payments made under sections
104, 302, and
408 of this act, and penalties under RCW 43.21B.300 and 90.03.600
must
be deposited into the account. Expenditures from the account
may be
used only for the department of ecology to purchase or lease water
rights for placement in the trust water rights program created
in this
chapter and chapter 90.38 RCW. Moneys in the stream flow
restoration
account may be spent only after appropriation.
{+ NEW SECTION. +} Sec. 1006.
There is hereby appropriated to the
state and local improvements revolving account--water supply
facilities, established in RCW 43.99E.020, for the biennium ending
June
30, 2001, the sum of forty-three million dollars from funds
appropriated by the United States to the state of Washington to
be
divided into two shares as follows:
(1) Twenty-one million five hundred thousand
dollars, or as much
thereof as may be necessary, shall be expended by the department
of
ecology for agricultural water supply conservation and efficiency
improvement projects. These funds shall be provided to qualifying
public bodies as grants and loans.
(2) Twenty-one million five hundred thousand
dollars, or as much
thereof as may be necessary, shall be expended by the department
of
health for domestic and municipal water supply conservation and
efficiency improvement projects. These funds shall be provided
to
qualifying public bodies as grants and loans.
{+ NEW SECTION. +} Sec. 1007.
A new section is added to chapter
90.42 RCW to read as follows:
Conserved water resulting from projects
funded under section 1006
of this act shall be allocated in accordance with section 302 of
thisact.
{+ NEW SECTION. +} Sec. 1008.
Part headings used in this act are
not any part of the law.
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