SB 5239 — Ensuring that water is available to support development.

S-1742.1SECONDS-0049.5SENATE SUBSTITUTE SENATE BILL 5239State of Washington65th Legislature2017 Regular SessionBy Senate Ways & Means (originally sponsored by Senators Warnick, Takko, Ericksen, Becker, Walsh, Angel, Wilson, Schoesler, Honeyford, Pearson, Brown, and Padden)READPaddenRead FIRSTfirst TIMEtime 02/24/17.AN01/18/17. ACT Relating to ensuring that water is available to support development;

amendingReferred RCWto 19.27.097,Committee 36.70A.070,on 58.17.110,Agriculture, 90.03.247,Water, andTrade 90.54.120;& Economic Development.AN ACT Relating to ensuring that water is available to support development;

andamending declaringRCW an19.27.097, emergency.BE36.70A.070, IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:Sec. 1.  RCW 19.27.097 and 201558.17.110; c 225 s 17 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.

Evidenceadding may be in the form of a waternew rightsection permit from the department of ecology, a letter from an approved water purveyor stating the ability to provide water, a water well report for a groundwater withdrawal exempt from permitting under RCW 90.44.050 and not prohibited by an applicable water resources management rule adopted under chapter 90.5490.44 RCWRCW; by the department of ecology, or another form sufficient to verify the existence of an adequate water supply.

((Increating 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.)) An application for a waternew rightsection; shall not be sufficient proof of an adequate water supply.(2) 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.(3) 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 subsections (1) and (2) of this section shall not apply.

and declaring an emergency.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:NEW SECTION.  Sec. 1.  By this act, the legislature is amending the law that was under review by the supreme court of Washington in Whatcom County v.

Western Washington Growth Management Hearings Board (No.

91475-3, October 6, 2016), also known as the Hirst opinion.

The legislature finds that the Hirst opinion imposes new requirements that create substantial hardships for property owners who rely on water drawn from wells to support reasonable uses of their property, and that such requirements threaten to halt economic development throughout the state, especially in rural areas.

The legislature further finds that the new requirements imposed by the supreme court in the Hirst opinion are unnecessary as a matter of public policy because groundwater withdrawals that are exempt from permitting by the department of ecology under RCW 90.44.050 cumulatively represent less than one percent of the total water used in Washington.

Therefore, the legislature is amending pertinent statutes to ensure that prospective application of the law is not controlled by the Hirst opinion.Sec. 2.  RCW 19.27.097 and 2015 c 225 s 17 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 water purveyor stating the ability to provide water, or another form sufficient to verify the existence of an adequate water supply, including but not limited to information pertaining to applicable water resources management rules adopted by the department of ecology.

If an applicant for a building permit proposes to use a groundwater withdrawal that is exempt from permitting by the department of ecology under RCW 90.44.050 to supply potable water for a building, the local building permitting authority may determine that it is sufficient under this subsection for the applicant to provide evidence that water is physically available for use.

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.

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.

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 enterprise services to mediate or, if necessary, make the determination.(((3)))determination.(3) (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.Sec. 2.  RCWcounties.Sec. 3.  RCW 36.70A.070 and 2015 c 241 s 2 are each amended to read as follows:The comprehensive plan of a county or city that is required or chooses to plan under RCW 36.70A.040 shall consist of a map or maps, and descriptive text covering objectives, principles, and standards used to develop the comprehensive plan.

Requirements to incorporate any such new or amended elements shall be null and void until funds sufficient to cover applicable local government costs are appropriated and distributed by the state at least two years before local government must update comprehensive plans as required in RCW 36.70A.130.Sec. 3.  RCW36.70A.130.Sec. 4.  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.

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) 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.(4) In approving a subdivision, dedication, or short subdivision under this chapter, a city, town, or county may rely on or refer to applicable water resources management rules adopted by the department of ecology to determine if appropriate provisions have been made for potable water supplies.Sec. 4.  RCWsupplies.NEW 90.03.247SECTION.  Sec. 5.  A andnew 2003section cis 39added sto 48chapter are90.44 eachRCW amended to read as follows:(1) WheneverA angroundwater applicationwithdrawal forthat is exempt from the requirement to obtain a permit tofrom makethe beneficialdepartment useunder ofRCW public90.44.050 watersmay isnot approvedbe relatingdeemed or considered to be causing impairment or injury to a streambase flow, minimum flow, minimum level, or other watersimilar bodystandard or policy, established by the department, regardless of the priority date of the base flow, minimum flow, minimum level, or other similar standard or policy.(2) This section does not affect the ability of any person to pursue a cause of action for whichthe protection of any water right that is not a base flow, minimum flowsflow, minimum level, or levelsother havesimilar beenstandard adoptedor andpolicy, areestablished inby effectthe atdepartment.NEW SECTION.  Sec. 6.  If any provision of this act or its application to any person or circumstance is held invalid, the timeremainder of approval,the act or the permitapplication shallof bethe conditionedprovision to:to other persons or circumstances is not affected.NEW SECTION.  Sec. 7.  This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.--- END ---

(a) Protect the levels or flows;

or (b) mitigate impacts to fish or aquatic resources.

Mitigation need not be limited to measures that require water to be replaced and may include other or different measures designed to mitigate the impact of the use of water without requiring the replacement of water.

The department may not require the water user to mitigate for impacts that do not result from the water user's use of water.(2) No agency may establish minimum flows and levels or similar water flow or level restrictions for any stream or lake of the state other than the department of ecology whose authority to establish is exclusive, as provided in chapter 90.03 RCW and RCW 90.22.010 and 90.54.040.

The provisions of other statutes, including but not limited to ((RCW 77.55.100 and)) chapter 43.21C RCW, may not be interpreted in a manner that is inconsistent with this section.

In establishing such minimum flows, levels, or similar restrictions, the department shall, during all stages of development by the department of ecology of minimum flow proposals, consult with, and carefully consider the recommendations of, the department of fish and wildlife, the department of ((community, trade, and economic development)) commerce, the department of agriculture, and representatives of the affected Indian tribes.

Nothing herein shall preclude the department of fish and wildlife, the department of ((community, trade, and economic development)) commerce, or the department of agriculture from presenting its views on minimum flow needs at any public hearing or to any person or agency, and the department of fish and wildlife, the department of ((community, trade, and economic development)) commerce, and the department of agriculture are each empowered to participate in proceedings of the federal energy regulatory commission and other agencies to present its views on minimum flow needs.Sec. 5.  RCW 90.54.120 and 1971 ex.s.

c 225 s 13 are each amended to read as follows:((For the purposes of this chapter, unless the context is clearly to the contrary, the following definitions shall be used:)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.(1) "Department" means department of ecology.(2) "Utilize" or "utilization" shall not only mean use of water for such long recognized consumptive or nonconsumptive beneficial purposes as domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, thermal power production, mining, recreational, maintenance of wildlife and fishlife purposes, but includes the retention of water in lakes and streams for the protection of environmental, scenic, aesthetic and related purposes, upon which economic values have not been placed historically and are difficult to quantify.(3) "Withdrawal of water" means the removal of water from any source for a beneficial use.NEW SECTION.  Sec. 6.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.NEW SECTION.  Sec. 7.  This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.--- END ---