WSR 99-08-125

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 9823-- Filed April 7, 1999, 10:37 a.m. ]

Supplemental Notice to WSR 98-22-069.

Preproposal statement of inquiry was filed as WSR 98-18-103.

Title of Rule: Amend chapter 173-532 WAC, Water resources program, Walla Walla Basin.

Purpose: To prioritize change applications over new applications when change applications meet certain criteria.

Statutory Authority for Adoption: Chapters 43.21A, 43.27A, 90.03, 90.44, 90.54 RCW.

Statute Being Implemented: Chapters 90.44 and 90.54 RCW.

Summary: The amendment enables ecology to prioritize water right change applications ahead of those for new water rights if the proposal in the change application would either result in construction or expansion of a municipal water supply system, consistent with its approved water system plan and managed according to specific water conservation principles negotiated with and agreed to by the department, or if the project incorporates a watershed restoration component (to be evaluated and prioritized using criteria specified in the amendment).

Reasons Supporting Proposal: Applications for new water rights are generally being held pending resolution of hydraulic continuity issues and some change applications may achieve at least one of the results noted above.

Name of Agency Personnel Responsible for Drafting: Thom Lufkin, Lacey, (360) 407-6631; Implementation and Enforcement: Bill Neve, Walla Walla, (509) 527-4546.

Name of Proponent: Walla Walla County Regional Planning Department and Walla Walla County Board of Commissioners, public and governmental.

Rule is necessary because of state court decision, Hillis vs. Ecology, Washington State Supreme Court (No. 63399-1) filed March 6, 1997.

Explanation of Rule, its Purpose, and Anticipated Effects: This amendment to chapter 173-532 WAC, Water resources program for the Walla Walla Basin, enables ecology to prioritize water right change applications ahead of applications for new water under certain conditions. The first possibility for such prioritization is if the proposal would result in construction or expansion of a municipal water supply system consistent with its approved water system plan, and which will be managed according to specific water conservation principles negotiated with and agreed to by the department.

The second possibility for prioritization would occur if the project proposed in the change application incorporates a watershed restoration component. If this component was part of a riparian project proposal, the restoration activity would be evaluated and prioritized using the following criteria: (1) Listed ESA species are affected, together with life-stage and use; (2) priority limiting factors for the stream reach are addressed; (3) cost effectiveness; (4) size of area affected; (5) relationship to other projects; and (6) other (e.g., use of innovative techniques). If the proposal was for a nonriparian project, the watershed restoration component would be evaluated based on these criteria: (1) Erosion control/sediment reduction; (2) upland habitat improvement; and (3) wetland enhancement or development.

Proposal Changes the Following Existing Rules: See above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed language is essentially procedural in nature (see above for description). Businesses and individuals whose change applications qualify for prioritization would enjoy a reduction in waiting time and costs, while those businesses and individuals whose applications do not qualify will experience an increase in waiting time and costs. However, given the notation (in proposed WAC 173-532-085(1)) that little water is available for new appropriation in the basin, these increases may not be made significantly greater by the amendment to the rule. In any case, there is no basis for attributing these impacts to whether a project is proposed by small versus large businesses, either in absolute or relative terms. Rather, the impacts follow from the nature of the water rights applicants' proposals and the applicants' place in the line of applications.

RCW 34.05.328 applies to this rule adoption. These rules are significant under RCW 34.05.328 because they make significant amendments to a regulatory program. The agency will conduct the additional analysis under RCW 34.05.328 prior to adoption.

Hearing Location: Washington State University, Walla Walla County Extension Office Auditorium, 317 West Rose, Walla Walla, WA, on May 12, 1999, at 7:00 p.m. to 9:00 p.m.

Assistance for Persons with Disabilities: Contact Paula Smith by May 14, 1999, TDD (360) 407-6006, or voice (360) 407-6607.

Submit Written Comments to: Thom Lufkin, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, fax (360) 407-6631, by May 21, 1999.

Date of Intended Adoption: May 26, 1999.

April 6, 1999

Daniel J. Silver

Deputy Director

OTS-2643.2


NEW SECTION
WAC 173-532-085
Prioritizing change and transfer applications.

(1) The department recognizes that the many water resource planning documents and water supply studies which have been prepared for the Walla Walla River basin contain a significant amount of useful water management information. The department's general interpretation of these studies is that there is little water available within the basin for new appropriations. Consequently, the department has concluded that processing applications for changes or transfers of existing water rights is a more efficient and effective approach to managing water within the Walla Walla basin than processing applications for new appropriations.

(2) Therefore, an application for a change or transfer of an existing water right may be processed before applications for new water rights with senior filing dates proposing to use water from the same source or hydraulically connected sources of ground water, provided one or more of the following criteria are satisfied:

(a) The proposed transfer or change would result in the construction or expansion of a municipal water supply system consistent with its approved water system plan and that system will be managed according to specific water conservation principles negotiated with and agreed to by the department prior to approval of the proposed change or transfer.

(b) The proposed transfer or change would incorporate a watershed restoration component that would be specifically designed to protect or restore watershed health. Project proposals will be categorized and evaluated on the basis of either being riparian or nonriparian in nature. Consistent with the critical pathways methodology outlined in chapter 75.46 RCW, the department will use the criteria established by the Southeast regional salmon committee to evaluate and prioritize individual riparian project proposals within the basin. These criteria are: (i) Listed ESA species affected, together with life-stage and use;

(ii) Priority limiting factors for the stream reach;

(iii) Cost-effectiveness;

(iv) Size of area affected;

(v) Relationship to other projects; and

(vi) Other considerations (e.g., protection versus restoration, innovative techniques, etc.).

(c) Nonriparian project proposals will be evaluated and prioritized using natural resource conservation service environmental enhancement criteria for nonriparian areas. The criteria to be used are:

(i) Erosion control/sediment reduction;

(ii) Upland habitat improvement; and

(iii) Wetland enhancement or development.

Based on these ranking criteria, project submittals scoring fifty percent or higher of the total points available will be considered to have significant environmental benefit and the associated application(s) will be evaluated out of processing priority sequence and ahead of other applications. Priority will first be given to applications with qualifying riparian project proposals. Where several competing applications within a category have met the fifty percent threshold, priority will be given to the proposals with the highest score.

Approval of any change application evaluated out of sequence through this process will be provisioned such that no final superseding certificate will issue unless and until the watershed project is installed and/or implemented to the satisfaction of the department. Failure to complete the watershed project may lead to enforcement against use of the changed water right for lack of compliance with conditions of the change approval.

Should evaluation criteria for riparian project proposals be developed and adopted by the Walla Walla and Columbia County habitat restoration committees, this rule will be amended to require use of those criteria instead of those of the Southeast regional salmon committee.

(3) It shall be the responsibility of the applicant to present any project proposal to the department, together with all supporting documentation, in order for the proposal to be considered for review under subsection (2)(a) or (b) of this section.

(4) Although subsection (2) of this section allows transfer or change applications to be processed before new applications for water from the same source or hydraulically connected ground water source that were filed earlier than the applications for transfer or change, the department is required by law to assure that the earlier applicants' opportunity to receive a permit would not be impaired if the transfer or change application is approved.

(5) The criteria in subsection (2) of this section are meant to supplement WAC 173-152-050 (3)(a), (criteria for priority processing of competing applications). Nothing in this chapter shall serve to supersede the requirements set forth through chapter 173-152 WAC (water right administration).

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