WSR 97-22-084

PROPOSED RULES

DEPARTMENT OF ECOLOGY

[Order 97-15--Filed November 4, 1997, 4:09 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-12-092.

Title of Rule: Chapter 173-563 WAC, Instream resources protection program for the main stem Columbia River and chapter 173-531A WAC, Water resource program for the John Day-McNary Pools Reach of the Columbia River, WRIA 31 and parts of WRIAs 32, 33, and 37.

Purpose: To ensure that any new water right permits for diversion or withdrawals from the Columbia River are conditioned with adequate instream flow protection conditions.

Statutory Authority for Adoption: RCW 90.54.040, WAC 173-563-090, 1997 ESHB.

Statute Being Implemented: RCW 90.54.040 (Water Resources Act of 1971).

Summary: Chapters 173-563 and 173-531A WAC would be amended to state that current instream flows in chapter 173-563 WAC would not apply to new water right permits approved after July 27, 1997. Such water right permits would be conditioned on a case-by-case basis following consultation by ecology with appropriate state and federal agencies and Indian tribes regarding possible impacts on fisheries and existing water rights.

Reasons Supporting Proposal: The existing instream flows were adopted in the early 1980s and do not adequately address the flow issues associated with the various endangered fish stocks in the Columbia Basin.

Name of Agency Personnel Responsible for Drafting: Thom Lufkin, 300 Desmond Drive, Lacey, (360) 407-6631; Implementation and Enforcement: Regional staff, Yakima and Spokane, (509) 575-2490; (509) 456-2926.

Name of Proponent: Washington State Department of Ecology, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The Department of Ecology put a moratorium on new water appropriations from the Columbia River in 1992; in 1994 the moratorium was extended until 1999. However, ESHB 1110, passed in the 1997 legislative session, ended the moratorium as of July 27, 1997.

The existing instream flows were adopted in the early 1980s and do not adequately address the flow issues associated with the various endangered fish stocks in the Columbia River Basin. Chapters 173-563 and 173-531A WAC would be amended to state that the current instream flow levels in chapter 173-563 WAC would not apply to new water right permits approved after July 27, 1997. Any newly approved water right permits would be conditioned on a case-by-case basis following a consultation by ecology with appropriate state and federal agencies and Indian tribes regarding potential impacts on weak fish stocks and existing water rights.

Proposal Changes the Following Existing Rules: See Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule amendment results from the legislation which voided a moratorium on processing applications for new water right permits from the Columbia River main stem. The effect of the rule is that a means is created to process permit applications, should a situation occur in which it is appropriate to do so, while continuing to protect instream flows necessary for the various endangered salmon stocks in the basin. The economic impact on small businesses is potentially improved as a result.

RCW 34.05.328 does not apply to this rule adoption. This rule amendment is proposed as a consequence of legislation passed in the 1997 session, which voided a moratorium on processing applications for new water right permits from the Columbia River main stem. Because this could have led to use of outdated instream flow conditions on new permits, the rule is necessary to protect instream flows for endangered fish stocks while meeting the legislative intent of allowing for the possibility of new water right permits from the main stem Columbia River.

Hearing Location: All hearings will be held from 7:00 p.m. to 9:00 p.m.

In Spokane, Tuesday, December 9, 1997, Department of Ecology, Second Floor Conference Room, North 4601 Monroe, Suite 202, Spokane; in Kennewick, Wednesday, December 10, 1997, Department of Ecology, Large Conference Room, 1315 West Fourth Avenue, Kennewick; in Yakima, Thursday, December 11, 1997, Department of Ecology, Waterfall-Seafoam Rooms, 15 West Yakima Avenue, Suite 200, Yakima; in Colville, Tuesday, December 16, 1997, Stevens County Courthouse, Room 215, Commissioners' Hearing Room, 215 South Oak, Colville; in Bridgeport, Wednesday, December 17, 1997, Bridgeport High School, Library, 1350 Tacoma, Bridgeport; and in Wenatchee, Thursday, December 18, 1997, Department of Transportation, Area 1 Maintenance Building, Conference Room, 2830 Euclid Avenue, Wenatchee.

Assistance for Persons with Disabilities: Contact Felecia Curtis by November 19, 1997, TDD (360) 407-6006, or (360) 407-6199.

Submit Written Comments to: Thom Lufkin, Water Resources, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, FAX (360) 407-7162, by December 26, 1997.

Date of Intended Adoption: January 28, 1998.

October 21, 1997

Daniel J. Silver

Deputy Director

AMENDATORY SECTION (Amending Orders DE 82-35 and DE 82-35A, filed 10/7/82 and 10/8/82)

WAC 173-563-020 Applicability. (1) This chapter applies to public surface waters of the main stem Columbia River in Washington state and to any ground water the withdrawal of which is determined by the department of ecology to have a significant and direct impact on the surface waters of the main stem Columbia River.

The extent of the "main stem" Columbia River shall be the Columbia River from the upstream extent of tidal influence (Bonneville Dam-River Mile 146.1) upstream to the United States-Canada border (River Mile 745) and including those areas inundated by impounded waters at full pool elevations.

(2) Chapter 173-500 WAC, the general rules of the department of ecology for the implementation of the comprehensive water resources program mandated by RCW 90.54.040, applies to this chapter.

(3) Nothing in this chapter shall affect existing water rights, riparian, appropriative, or otherwise, existing on the effective date of this chapter, including existing rights relating to the operation of any navigation, hydroelectric, or water storage reservoir, or related facilities. This exemption includes rights embodied in all water right permits and certificates existing on the effective date of this chapter.

(4) ((Water right permits and certificates for domestic/municipal water supplies issued subsequent to the effective date of this rule shall not be subject to the provisions of this chapter.)) The instream flows established and implemented by this chapter for instream and out-of-stream uses, and the average weekly flows applied by this chapter to out-of-stream uses do not apply to any application for water from the main stem Columbia River on which a decision is made by the department of ecology on or after July 27, 1997. Any water right application on which a decision is made by the department on or after that date will be evaluated on a case-by-case basis. Any permit which is then approved for the use of such waters will be, if deemed necessary, subject to instream flow protection or mitigation conditions determined by the department after consultation with appropriate state and federal agencies and Indian tribes, regarding possible impacts on fisheries and existing water rights.

(5) Waters withdrawn by the United States pursuant to RCW 90.40.030 prior to the effective date of this rule relating to the second half of the Columbia basin project, and water right permits and certificates hereafter issued by the department of ecology pertaining to such withdrawn waters, are not subject to the provisions of this chapter.

(6) For the purposes of this chapter, average weekly flows shall be the average of the daily average flows reported in the Columbia River operational hydromet and management system (CROHMS) for a seven-day period beginning at 12:01 a.m. Monday and ending at midnight on Sunday. When the beginning of the seven-day period defined in this section does not correspond to the dates on which flows are established in WAC 173-563-040, the flow requirements for that week shall be the arithmetic average of the required flows listed in WAC 173-563-040 for each of the seven days, rounded to the nearest 1,000 cfs.

[Statutory Authority: RCW 90.54.040, 90.54.050, chapters 90.03 and 90.22 RCW. 82-21-001 and 82-21-007 (Orders DE 82-35 and DE 82-35A), 173-563-020, filed 10/7/82 and 10/8/82; 80-08-021 (Order DE 80-2), 173-563-020, filed 6/24/80.]

REPEALER

The following section of the Washington Administrative Code is repealed:

WAC 173-563-015 Withdrawal of unappropriated waters.

AMENDATORY SECTION (Amending Order DE 80-19, filed 6/24/80)

WAC 173-531A-060 Permit conditions. All permits issued for waters reserved under WAC 173-531A-040 or 173-531A-050 after the effective date of this chapter and prior to July 27, 1997, shall be subject to the provisions of chapter 173-563 WAC - instream resources protection program for the main stem ((of the)) Columbia River in Washington state. Any application for waters reserved under WAC 173-531A-040 or 173-531A-050 on which a decision is made by the department on or after July 27, 1997, will be evaluated on a case-by-case basis. Any permit which is then approved for the use of such waters will be, if deemed necessary, subject to instream flow protection or mitigation conditions determined by the department after consultation with appropriate state and federal agencies and Indian tribes, regarding possible impacts on fisheries and existing water rights.