WSR 97-10-091

EMERGENCY RULES

DEPARTMENT OF ECOLOGY

[Order 97-10--Filed May 7, 1997, 10:46 a.m.]

Date of Adoption: May 7, 1997.

Purpose: Establish criteria under which the department may prioritize processing of certain applications for water right or applications to change or transfer a water right in order to address a public health or safety emergency.

Statutory Authority for Adoption: RCW 43.21A.064(8) and 43.27A.090(11).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The Washington State Supreme Court in, Hillis v. Ecology, found the policies and procedures adopted by ecology for workload organization and management were within agency statutory authority, but subject to rule making. This rule will establish a priority for action for certain applications to address a public health or safety emergency while permanent rule making is being completed.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 5, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Immediately.

May 2, 1997

Thomas Fitzsimmons

Director

Chapter 173-152 WAC




PRIORITIZING CERTAIN WATER RIGHT APPLICATIONS

NEW SECTION

WAC 173-152-010 Purpose. These rules establish criteria under which the department can provide priority for processing of applications for new water rights and applications to change or transfer existing water rights necessary for the preservation of public health or safety.

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NEW SECTION

WAC 173-152-020 Definitions. For the purposes of this chapter the following definitions apply:

(1) "Department" means the department of ecology.

(2) "Public water system" means a water supply system as defined in RCW 70.119A.020.

(3) "Applications to change or transfer" means applications made under RCW 90.03.380 or 90.44.100.

(4) "Competing applications" means all existing applications for a new water right and applications to change or transfer water rights from the same source of water.

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NEW SECTION

WAC 173-152-030 Applications may be prioritized. An application for a water right or an application to change or transfer an existing water right may be processed by the department prior to competing applications if one or more of the criteria in WAC 173-152-040 are satisfied. Any other application will be evaluated and a decision made based on the date it was received in relation to other applications from the same water source or aquifer.

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NEW SECTION

WAC 173-152-040 Criteria for priority processing. (1) An application may be processed prior to competing applications if the application resolves or alleviates a public health or safety emergency caused by a failing public water supply system currently providing potable water to existing users. The inability of any public water system to accommodate future population growth or other future uses does not constitute a public health or safety emergency. The application must be filed specifically to correct the actual or anticipated cause(s) of the public water system failure. To be considered a failing public water system, the system must meet one or more of the following conditions:

(a) The department, upon notification by and in consultation with the department of health or local health authority, determines a public water system has failed, or is in danger of failing within one year, to meet state board of health standards for the delivery of potable water to existing users in adequate quantity or quality to meet basic human drinking, cooking and sanitation needs;

(b) The current water source has failed or will fail so the public water system is or will become incapable of exercising its existing water right to meet existing needs for drinking, cooking and sanitation purposes after all reasonable conservation efforts have been implemented; or

(c) A change in source is required to meet drinking water quality standards and avoid unreasonable treatment costs, or the state department of health determines that the existing source of supply is unacceptable for human use.

(2) An application for a change or transfer to an existing water right may be processed prior to competing applications if a sufficient investigation has been completed as of the effective date of this chapter to issue a final decision, delay in issuing the final decision would cause undue costs, and issuing the final decision would not delay processing of other applications or affect other existing water rights.

(3) Immediate processing of the application is necessary for preservation of public health or safety.

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NEW SECTION

WAC 173-152-050 Exceptions. Nothing in this chapter precludes the department from making decisions on applications or requests filed pursuant to RCW 43.83B.410, 90.03.383(7), or 90.03.390 where the law provides a specific process for evaluation of an application and issuance of a decision.

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