WSR 02-15-181

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 02-06 -- Filed July 24, 2002, 11:18 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-08-073.

Title of Rule: Chapter 173-157 WAC, Underground artificial storage and recovery.

Purpose: The purpose of this rule is to establish the standards for review of applications for underground artificial storage and recovery projects and standards for identification and mitigation of potential adverse impacts to ground water quality or the environment.

Statutory Authority for Adoption: RCW 90.03.370 (2)(b), 90.44.460.

Statute Being Implemented: RCW 90.03.370, chapter 90.44 RCW.

Summary: Chapter 173-157 WAC outlines the process the Department of Ecology will use to evaluate applications and issue permits to artificially store water in underground geological formations and subsequently recover it for beneficial use.

Name of Agency Personnel Responsible for Drafting: Kathleen Ensenat, Department of Ecology, Headquarters, (360) 407-6780; Implementation and Enforcement: Joe Stohr, Program Manager, Department of Ecology, Headquarters, (360) 407-6602.

Name of Proponent: Department of Ecology, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: This will create a "third line" for processing permits for applicants that already hold a right to the source water.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of this rule is to establish the standards for review of applications for underground artificial storage and recovery projects and, standards for identification and mitigation of potential adverse impacts to ground water quality or the environment. Chapter 173-157 WAC outlines the process the Department of Ecology will use to evaluate applications and issue permits to artificially store water in underground geological formations and subsequently recover it for beneficial use.

Under this proposal, an application for a reservoir permit for an ASR project must contain, at a minimum:

(1) A general description (conceptual model) of the hydrogeologic system prepared and certified by a hydrogeologist licensed in the state of Washington.

(2) A project operation plan with a general description of the pilot and operational phases of the ASR project prepared and certified by an engineer or geologist licensed in the state of Washington.

(3) A description of the legal framework for the proposed project.

(4) An environmental assessment and analysis of any potential adverse conditions or potential impacts to the surrounding environment that might result from the project.

(5) A project mitigation plan, if required.

(6) A project monitoring plan.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required because the substantive requirements for obtaining an ASR permit are mandated by RCW 90.03.370 (2)(a). Furthermore, those requirements are essential to prevent infringement on existing water rights and environmental damage from improper ASR design or operation.

RCW 34.05.328 applies to this rule adoption. It has been determined that this rule would be considered a significant legislative rule. Therefore, the requirements of RCW 34.05.328 are being met.

Hearing Location: Mid Columbia Kennewick Library, 1620 South Union, Kennewick, 99336, on August 27, 2002, at 5:00 p.m.; and at Lakehaven Center, 31531 1st Avenue South, Federal Way, 98003, on August 29, 2002, at 5:00 p.m.

Assistance for Persons with Disabilities: Contact Christine Corrigan by 5:00 p.m. on August 20, 2002, TDD (360) 407-6006 or (360) 407-6607.

Submit Written Comments to: Kathleen Ensenat, 600 Desmond Drive, Lacey, WA 98504, Kspa461@ecy.wa.gov, phone (360) 407-6780, fax (360) 407-7162, comments must be received by 5:00 p.m. on September 6, 2002.

Date of Intended Adoption: November 9, 2002.

July 23, 2002

Linda Hoffman

Assistant Director

OTS-5857.1

Chapter 173-157 WAC

UNDERGROUND ARTIFICIAL STORAGE AND RECOVERY

PART I INTRODUCTION
NEW SECTION
WAC 173-157-010   What is the purpose of this rule?   The purpose of this rule is to establish the standards for review of applications for underground artificial storage and recovery projects and to identify options for mitigation of potential adverse impacts to ground water quality or the environment. The rule also outlines the process the department of ecology will use to evaluate applications and issue permits to artificially store water in underground geological formations and subsequently recover it for beneficial use.

[]


NEW SECTION
WAC 173-157-020   What is the authority for this rule?   In 2000, the Washington state legislature passed Engrossed Second Substitute House Bill 2867 (E2SHB 2867), which amended chapters 90.03 and 90.44 RCW. This bill expanded the definition of "reservoir" in RCW 90.03.370 to include "any naturally occurring underground geological formation where water is collected and stored for subsequent use as part of an underground artificial storage and recovery project." Projects of this type are more commonly known as "aquifer storage and recovery" or "ASR" projects. The legislation directed the department to adopt rules establishing the "standards for review and standards for mitigation of adverse impacts for an underground artificial storage and recovery project." The department of ecology promulgates this rule under the authorities provided in chapter 34.05 RCW and RCW 90.03.370.

[]


NEW SECTION
WAC 173-157-030   To whom does this rule apply?   This rule applies to any firm, association, water users' association, corporation, irrigation district, or municipal corporation, or anyone else that intends to develop an underground artificial storage and recovery project pursuant to RCW 90.03.370. This chapter does not apply to projects utilizing irrigation return flow, or to operational and seepage losses that occur during the irrigation of land, or to water that is artificially stored due to the construction, operation, or maintenance of an irrigation district project, or to projects involving water reclaimed in accordance with chapter 90.46 RCW.

[]


NEW SECTION
WAC 173-157-040   What are the meanings of words and phrases used in this rule?   "Aquifer storage and recovery project," "ASR project," or "underground artificial storage and recovery project" means those projects where the intent is to artificially store water in an underground geological formation through injection, surface spreading and infiltration, or other department-approved method, and to make subsequent use of the stored water.

"Artificial recharge" means either controlled subsurface addition of water directly to the aquifer or controlled application of water to the ground surface for the purpose of replenishing the aquifer.

"Beneficial use" includes, among others, uses for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, thermal power production, municipal, and preservation of environmental and aesthetic values.

"Department" means the Washington department of ecology.

"DOH" means the Washington department of health.

"Piezometric elevation" means the static level to which the water from a given aquifer will rise under its full head.

"RCW" means the Revised Code of Washington.

"Receiving aquifer" or "reservoir" means any portion of a naturally occurring underground geological formation in which the source water will be collected and stored for a future beneficial use as part of an ASR project.

"SEPA" means the State Environmental Policy Act, chapter 43.21C RCW.

"Source water" means water that will be stored in a receiving aquifer.

"Stored water" means water that has been stored in a receiving aquifer pursuant to a reservoir permit issued in accordance with the provisions of this chapter.

"UIC" means the Underground Injection Control program, which was created by the U.S. Environmental Protection Agency in response to federal legislation (the Safe Drinking Water Act) and is administered by the department's water quality program.

"You" and "I" means any firm, association, water users' association, corporation, irrigation district, municipal corporation, or anyone else that intends to obtain a reservoir permit to develop an underground artificial storage and recovery project pursuant to RCW 90.03.370.

[]


NEW SECTION
WAC 173-157-050   What authorization is required for an ASR project?   The following permits or authorizations are required:

(1) Water rights to source waters.

(a) Any water you use as part of a project by diverting from a state watercourse or withdrawing state ground waters, must be obtained under a valid water right permit, certificate, or registered water right claim.

(b) The underlying water right specifies uses. Any changes to these uses will require issuance of a secondary permit.

(2) Reservoir permit. When proposing to collect and store water in a naturally occurring underground geological formation for subsequent use as part of an ASR project, you must apply for a reservoir permit in accordance with the provisions of RCW 90.03.370 (2)(a).

(3) Secondary permit. You must apply for a secondary permit in accordance with the provisions of RCW 90.03.370 if you propose to apply the water stored in a reservoir to a beneficial use, except that you are not required to apply for a secondary permit if you already have a water right for the source of the stored water that authorizes the beneficial use.

(4) UIC registration. All UIC wells to be utilized as part of an ASR project must be registered with the department in accordance with the provisions of chapter 90.48 RCW. Additionally, the construction and technical aspects of the injection wells must abide by UIC regulations as stated in chapter 173-218 WAC.

[]

PART II APPLICATION PROCESS
NEW SECTION
WAC 173-157-100   What should I know before I apply?   (1) You must assess potential impacts to the hydrogeologic system and the environment prior to submitting your application. If your application does not describe the general setting and conditions with sufficient information for the department to assess the application, the department may require you to perform a detailed feasibility study. This feasibility study should reduce uncertainty on the impacts, and better quantify the available storage within the aquifer.

(2) To further reduce uncertainty, you must design a pilot phase of the project, to be used to collect data, monitor efficacy, and adjust the plan based upon results.

(3) You may schedule a preapplication meeting with the department to discuss the project plan and likely requirements for monitoring and mitigation.

[]


NEW SECTION
WAC 173-157-110   What types of information will I need to provide as part of my application?   Your application for an ASR project must contain, at a minimum:

(1) A general description (conceptual model) of the hydrogeologic system prepared and certified by a hydrogeologist licensed in the state of Washington.

(2) A project operation plan with a general description of the pilot and operational phases of the ASR project prepared and certified by an engineer or geologist licensed in the state of Washington.

(3) A description of the legal framework for the proposed project.

(4) An environmental assessment and analysis of any potential adverse conditions or potential impacts to the surrounding environment that might result from the project.

(5) A project mitigation plan, if required.

(6) A project monitoring plan.

[]


NEW SECTION
WAC 173-157-120   What must I include in the hydrogeologic system description?   Your hydrogeologic system description must include a conceptual hydrogeologic model that describes:

(1) The aquifer targeted for storage, to include at a minimum estimates for:

(a) Lateral and vertical extent;

(b) Whether the aquifer is confined or unconfined;

(c) Permeability;

(d) Total storage volume available;

(e) Effective hydraulic conductivity;

(f) Transmissivity; and

(g) Potential for introduction of precipitates into the ground water when normally dry formation is recharged.

(2) The estimated flow direction(s) and rate of movement.

(3) The anticipated changes to the ground water system due to the proposed ASR project.

(4) The estimated area that could be affected by the project.

(5) The general geology in the vicinity of the proposed project, including stratigraphy and structure.

(6) The locations of existing documented natural hazards that could be affected or exacerbated by the project, such as landslide-prone areas or areas of subsidence.

(7) The locations of surface waters such as springs, creeks, streams or rivers that could be affected by the ASR project.

(8) The locations of all wells or other sources of ground water of record within the area affected by the project.

(9) The chemical composition of the source water and its compatibility with the naturally occurring waters of the receiving aquifer.

[]


NEW SECTION
WAC 173-157-130   What must I include in the project operation plan?   Your project operation plan should include, at a minimum, the following information:

(1) The quantity and times of year water is available for recharge.

(2) The proposed rate of injection and withdrawal of water.

(3) The length of time the water is proposed to be stored.

(4) The location, number, and capacity of proposed recharge wells or infiltration basins, and recovery facilities.

(5) Any variability in quality and reliability of the source water.

(6) A description of the water treatment method(s) you will use at the time of injection and recovery to ensure compliance with the water quality standards set forth in chapter 173-200 WAC, as well as the department's antidegradation policy. The department shall give strong consideration to the overriding public interest in its evaluation of compliance with ground water quality protection standards.

(7) Any plans to aerate, if required, when pumping water out of an aquifer for stream augmentation.

(8) Any plans to flush out the injection system to dislodge sediment which can cause clogging.

(9) Destination(s) for waste water.

[]


NEW SECTION
WAC 173-157-140   What must I include in the description of the legal framework?   Your description of the legal framework should include, at a minimum:

(1) Documentation of the water rights allowing use of the source waters intended to be stored for the proposed ASR project.

(2) A list of other water rights within the ASR project area.

(3) Instream flows established by the department or stream closures in the vicinity of the point of diversion/withdrawal of the source water.

(4) Ownership and control of any facilities to be used for the proposed project.

[]


NEW SECTION
WAC 173-157-150   What must I include in the environmental assessment and analysis?   Your environmental assessment and analysis must, at a minimum, describe:

(1) The environment within the ASR project area, including:

(a) Proximity to contaminated areas;

(b) Present and prior land use(s) within the ASR project area;

(c) Location(s) of historical or existing wetland habitat(s);

(d) Location(s) of historical or existing flood plain(s);

(e) Location(s) of historical or existing surface water body or spring, including known:

(i) Base flows;

(ii) Seven-day low flows;

(iii) Maximum flows;

(2) Potential impacts to the surrounding environment by the ASR project.

[]


NEW SECTION
WAC 173-157-160   What must I include in the project mitigation plan?   Your project mitigation plan, which must be reviewed and approved by an engineer licensed in the state of Washington, shall include actions adequate to mitigate for any identified potential impacts to the environment, such as:

(1) Slope stability;

(2) Wetland habitat;

(3) Flood plain;

(4) Ground deformation;

(5) Surface water body or spring.

[]


NEW SECTION
WAC 173-157-170   What must I include in the data monitoring plan?   Your data monitoring plan, which will be utilized to evaluate and verify the assumptions in the conceptual model, during the pilot and operational phases, must include the following:

(1) Proposed time intervals for sampling and subsequent reporting.

(2) Descriptions of measurement methodology, threshold values, and evaluation techniques for the following criteria:

(a) The quality of the source and receiving waters. This information must be provided for the period or periods of the year when the water will be stored. Testing must be done by a laboratory certified by either the department or DOH.

(b) The actual quantity of water injected.

(c) Changes in ground water piezometric elevations in the receiving aquifer.

(d) The percentage of the initial amount of stored water that is recoverable after varying lengths of storage time to validate the estimates of the amount of stored water that is actually recovered.

(e) Other data you or the department deem important for monitoring the ASR project and potential impacts.

You must provide a report of the monitoring data, at least annually, to the department. Based on the complexity of the project, the department may require you to comply with a more frequent reporting schedule. The required reporting frequency will be documented in the permit.

[]


NEW SECTION
WAC 173-157-180   Where do I submit my application for a reservoir and/or secondary permit?   You must submit your application to the ecology water resources regional office that serves the area where your project would be located. Please refer to the department's website for telephone numbers.

(1) The Northwest regional office serves Whatcom, Island, Kitsap, San Juan, Skagit, Snohomish, and King counties.

(2) The Southwest regional office serves Clallam, Jefferson, Grays Harbor, Mason, Thurston, Pierce, Pacific, Lewis, Wahkiakum, Cowlitz, Clark, and Skamania counties.

(3) The Central regional office serves Okanogan, Chelan, Douglas, Kittitas, Yakima, Klickitat, and Benton counties.

(4) The Eastern regional office serves Ferry, Stevens, Pend Oreille, Lincoln, Spokane, Grant, Adams, Whitman, Franklin, Walla Walla, Columbia, Garfield, and Asotin counties.

[]

PART III APPLICATION REVIEW PROCESS
NEW SECTION
WAC 173-157-200   How will the department issue reservoir permits and/or secondary permits for ASR projects?   (1) The department will process applications for permits for ASR projects in accordance with the provisions of RCW 90.03.250 through 90.03.320, RCW 90.03.370, chapter 173-152 WAC and this chapter. The department shall expedite processing applications for those projects that:

(a) Will not require a new water right for diversion or withdrawal of the water to be stored;

(b) Are adding or changing one or more purposes of use for the stored water;

(c) Are adding to the storage capacity of the reservoir; or

(d) Are applying for the secondary permit to secure use of water stored in the reservoir.

(2) Any application considered under this chapter will be subject to review by a Washington department of fish and wildlife water rights biologist, specifically to ensure that the following do not occur during or after ASR project diversions or withdrawals:

(a) Erasure or alteration of natural flow peaks;

(b) Detrimental changes in temperature and nutrient levels during critical spawning and rearing periods;

(c) Downwelling or upwelling within stream during critical spawning and rearing periods; or

(d) Saturation of stream bank which could lead to erosion and bank failure.

The department will consider comments by the water rights biologist in determining whether the project will be detrimental to public welfare.

(3) The department may issue a conditioned permit. For example, conditions may be imposed to prevent any long-term changes to the aquifier. Such conditioning would provide for a pilot phase of the project, to be used to collect data, monitor efficacy, and adjust the plan based upon results.

(4) Permits will contain a schedule for:

(a) Development and completion of the project;

(b) Monitoring and reporting during the pilot and operational phases of the project.

(5) The department can, upon a showing of good cause, issue extensions for the permit in accordance with the provisions of RCW 90.03.320.

(6) Once sufficient information is developed and provided to the department to verify that the project is indeed viable and the requirements of RCW 90.03.330 have been met, the department will issue the reservoir and secondary permit certificate with the priority date or dates based on the underlying source or sources of water right.

[]

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 173-157-210   Can I appeal a decision made by the department on my application?   Yes, all final written decisions of the department made on applications pursuant to this chapter are subject to review by the pollution control hearings board in accordance with the provisions of chapter 43.21B RCW if you comply with the requirements for appeal established by statute and rule.

[]


NEW SECTION
WAC 173-157-220   Can this regulation be reviewed or updated?   Yes, the department may initiate a review of the rules established in this chapter whenever new information, changing conditions, statutory modifications, or other factors make it necessary or desirable to consider revisions.

[]


NEW SECTION
WAC 173-157-230   Where can I obtain copies of ecology statutes and regulations?   Copies of statutes and regulations cited in this chapter may be obtained from the public records office at the department's headquarters office. You may also obtain copies by downloading documents from the department's internet site at http://www.ecy.wa.gov or copies of rules of the pollution control hearings board from the pollution control hearings board's internet site at http://www.eho.wa.gov.

[]

Washington State Code Reviser's Office