Date of Adoption: November 15, 1999.

Purpose: This rule will guide the creation and operation of county water conservancy boards. The 1997 legislature authorized conservancy boards under chapter 90.80 RCW, allowing counties to establish boards to process applications to change existing water rights, subject to ecology approval. It also directs ecology to establish minimum requirements for training conservancy board members.

Statutory Authority for Adoption: Chapter 90.80 RCW, Water conservancy boards.

Adopted under notice filed as WSR 99-12-109 on June 2, 1999.

Changes Other than Editing from Proposed to Adopted Version: A substantial number of changes were made to the proposed rule, primarily to improve its readability and accuracy. Also, several changes were made to encourage water conservancy boards to involve other water planning entities, such as Indian tribes and watershed planning groups, in the boards' evaluation of applications to change existing rules.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 19, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 19, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

November 15, 1999

Tom Fitzsimmons

Director

OTS-3032.4

The purpose of this chapter is to establish procedures the department of ecology (ecology) and water conservancy boards (conservancy boards) will follow in implementing chapter 90.80 RCW, and in implementing RCW 90.03.380, 90.03.390, and 90.44.100, which govern the granting of water right transfers. Chapter 90.80 RCW authorizes establishment of water conservancy boards and vests them with certain powers relating to water right transfers.

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These procedures apply to the establishment of water conservancy boards (established in accordance with chapter 90.80 RCW) and to how applications to transfer water rights that are filed with a water conservancy board will be processed.

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For the purposes of this chapter, unless the context clearly indicates otherwise, the following definitions apply:

(1) "Application" means an application for a transfer of a water right, including those proposed under authority of RCW 90.03.380, 90.03.390 and 90.44.100. Application generally refers to filings made on an ecology form titled "application for change/transfer of water right," number 040-1-97, or as that form may be amended by ecology in the future.

(2) "Conditional decision" means the conclusion reached by an individual conservancy board regarding approval or denial of an application to transfer an existing water right.

(3) "Consumptive use" means use of water whereby there is a diminishment of the water source.

(4) "Source" means the water body from which water is or would be diverted or withdrawn under an existing water right which an applicant has proposed to be transferred.

(5) "Transfer" means an alteration, in whole or in part, in the point of diversion or withdrawal, purpose of use, place of use, or change or amendment of a water right, or other limitation or circumstance of water use approved in accordance with RCW 90.03.380, 90.03.390 or 90.44.100.

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Counties are encouraged to consult with ecology when considering formation of a water conservancy board.

(1) Creation of a water conservancy board is accomplished by the following steps:

(a) A resolution or petition must be submitted to the county legislative authority calling for formation of a water conservancy board. The resolution or petition may be initiated by:

(i) The county legislative authority;

(ii) The legislative authority of an irrigation district, a public utility district that operates a public water system, a reclamation district, a city operating a public water system, or a water-sewer district that operates a public water system;

(iii) The governing body of a cooperative or mutual corporation that operates a public water system serving one hundred or more accounts;

(iv) Five or more water rights holders who divert water for use in the county; or

(v) Any combination of the above;

(b) The resolution or petition must include:

(i) A statement of the need for the board;

(ii) Proposed bylaws that will govern the operation of the board;

(iii) An identification of the geographic boundaries where there is an initial interest in transacting water sales or transfers; and

(iv) A description of the proposed method(s) for funding the operation of the board;

(c) A public hearing must be held by the county legislative authority on the proposed creation of the board;

(d) A public notice must be published in a newspaper of general circulation in the county not less than ten days, nor more than thirty days, before the date of a public hearing to be held by the county legislative authority on the proposed creation of the water conservancy board. The notice shall describe the time, date, place and purpose of the hearing, as well as the purpose of the board. Notice must be sent to ecology's regional office at the time of publication and an effort should be made to ensure that any watershed planning unit or Indian tribe with an interest in water rights in the county also receives the notice;

(e) After the public hearing a resolution must be adopted by the county legislative authority approving the creation of a water conservancy board; and

(f) The county legislative authority shall identify and select county residents who wish to participate on the county's water conservancy board.

(2) Ecology will approve or deny creation of a water conservancy board within forty-five days of receiving:

(a) A copy of a resolution or petition to the county legislative authority calling for the formation of a water conservancy board. If five water rights holders who divert water for use in the county initiated the petition, it must include their names, addresses, and documentation as to the water rights held by the petitioners. Documentation may include the permit number, certificate number, or claim number of the petitioner's water right. The petition must include a description of how the water conservancy board will be funded;

(b) An affidavit of publication for the public notice that appeared in a newspaper of general circulation in the county not less than ten days nor more than thirty days before the date of the public hearing on the proposed creation of the board;

(c) A summary of the public testimony presented during the public hearing conducted by the county legislative authority in response to the resolution or petition to form a water conservancy board. The summary shall include a title and a date for the hearing;

(d) A copy of the resolution by the county legislative authority approving the creation of a water conservancy board. The resolution must include a method for funding the proposed water conservancy board; and

(e) A copy of the board's proposed bylaws.

(3) Ecology will determine if the creation of a water conservancy board will further the purposes of the law and will be in the public interest. The public interest includes, but is not limited to, whether ecology has sufficient staffing resources to provide necessary training, monitoring, and technical assistance to the board and to make timely responses to the board's anticipated conditional decisions on applications.

(4) Based on its determination, ecology will approve or deny the formation of the water conservancy board. If formation of a water conservancy board is approved, ecology will include a description of the training requirements as outlined in WAC 173-153-050 for water conservancy board members in its approval.

(5)(a) Ecology may revoke legal authority of a board to make conditional decisions in the following circumstances:

(i) If the board fails to render a conditional decision for a period of not less than two years; or

(ii) If the board demonstrates a pattern of ignoring legal principles and requirements in its processing of applications or in its conditional decisions; or

(iii) If requested by the county legislative authority that called for the board's formation.

(b) The board will be allowed thirty days to respond to any revocation before it becomes effective. Ecology may reverse the revocation based upon the board response.

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(1) Before participating in any conditional decision of a water conservancy board, every member is required to complete a training program provided by ecology. Successful completion of the training program will consist of:

(a) Completing at least thirty-two hours of instruction regarding hydrology, state water law, state water policy, administrative and judicial case law developments, field practices, evaluation of existing water rights, and applied practical experience working with applications for transfer of water rights with ecology staff; and

(b) Demonstrating sufficient mastery of the training curriculum by passing an examination given by an ecology employee upon completion of the minimum training.

(2) Ecology will certify in writing to the appropriate county legislative authority the successful completion of the training program for water conservancy board members and staff.

(3) After completing one year of service on a water conservancy board, members must each year complete eight hours of continuing education directed or approved by ecology. Continuing education may include readings, seminar or field experience on state water law, state water policy, administrative and judicial case law developments, field practices, the evaluation of existing water rights, or hydrology.

Ecology may, at its discretion, in response to demand, provide training semiannually. Ecology may combine training for more than one board.

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(1) A water conservancy board may accept an application for transfer of a surface or ground water right for processing if the water right is currently used within, or if approved, will be used within the boundaries of the county in which the board has jurisdiction. The application may be for a permanent or seasonal (temporary) use. The board shall investigate the application and make a determination whether the proposal should be approved or denied and, if approved, under what conditions the approval should be granted. In this process, boards should determine whether a watershed planning unit is involved in planning related to the source of water that would be affected by the application and, if so, the board should notify and consider comments from the watershed planning unit prior to issuing its conditional decision.

(2)(a) Applications for transfers that propose to use water from the same source must generally be processed in the order in which they were filed. Exceptions are outlined in chapter 173-152 WAC.

(b) Decisions on applications must be made by a board in the order in which the applications were originally filed with the board or with ecology, if the applications were first filed with ecology. Exceptions are as outlined in WAC 173-152-050 or as follows:

(i) Applications to alleviate public health and safety emergencies, as specified in WAC 173-152-050(1), may be processed before competing applications; and

(ii) If review of an application has begun and the board determines that gathering more information than is available at the time of the review is required, the board need not await the availability of the additional information before reviewing the next application awaiting action.

(c) A conservancy board must take into consideration the effect of a proposed transfer on the availability of water for any applications for new water rights, as well as any applications for transfers that were previously filed with ecology for water from the same source as the application under consideration by the board. Ecology will cooperate with conservancy boards to resolve any problems associated with conflicting applications. The availability of water for senior applicants, including those applicants who have filed transfer applications with ecology rather than a conservancy board, must not be impaired, regardless of the order in which applications are processed.

(3) The quantity of water appropriated under a water right may not be expanded. For agricultural use, the acreage irrigated may not be expanded, except in limited circumstances allowed in RCW 90.03.380 in which the consumptive use under the water right is not increased.

(4) Any water right or portion of a water right that has not previously been put to actual beneficial use cannot be transferred, except as authorized by RCW 90.44.100. Transfer of previously unused ground water rights under RCW 90.44.100 is limited to changing the place of use and the point of withdrawal.

(5) No applicant may be compelled to apply for a transfer with a conservancy board. Applicants have the option of applying directly to ecology rather than a water conservancy board.

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(1) Water conservancy boards may accept applications for transfer of water rights. Ecology will provide water right transfer application forms and applicant instructions to water conservancy boards, which will make them available to prospective applicants. All applications to the water conservancy board must be made using the water right transfer form supplied by ecology. The decision to file a transfer application with a conservancy board rather than directly with ecology is solely at the discretion of the applicant. The conservancy board and ecology will inform any prospective applicants that they have the option of filing either with the board or with ecology.

(2) The board shall ensure that the application is complete and legible and is accompanied by the minimum ten-dollar examination fee required by RCW 90.03.470(1). The board may establish and charge additional fees in accordance with RCW 90.80.060(2).

(3) The original application form and the statutory state application fee must be forwarded by the conservancy board to the appropriate ecology regional office within five working days of the date of receipt. Within thirty working days from the date of notice from the board, ecology will assign a state water right control number to the application and inform the water conservancy board of the assigned number. Ecology will open a file relating to the application that will be maintained for permanent recordkeeping. Ecology will inform the applicant if additional state fees are due.

(4) If an applicant makes a request to a water conservancy board that an application previously filed with ecology be reviewed by that conservancy board, the conservancy board must determine whether it will review the application. If the conservancy board determines that it will review that application, the board shall make a request to ecology, and ecology shall forward a copy of the application and all relevant documents to the conservancy board.

(5) A board may decline to process or continue processing an application at any time. The board will inform the applicant in writing of its decision to decline further consideration of the application within fourteen working days. The board must forward to ecology the working file for the specific transfer and any state application fees that have not previously been forwarded to ecology. The board must also provide a written explanation to ecology regarding its decision not to process or finish processing the application.

(6) The board must ensure that copies of the application are properly distributed to interested parties in compliance with existing laws, ecology memoranda of understanding, policies and other guidance. To assist the board, ecology will provide a list of potentially interested parties.

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(1) The water conservancy board shall publish, or require the applicant to publish, a public notice of the proposed transfer of a water right in accordance with RCW 90.03.280, at least once a week for two consecutive weeks in the legal notice section of a newspaper of general circulation in at a minimum the county or counties of proposed water use, diversion and storage of water. Ecology must provide the board with a list of newspapers acceptable for this purpose. Additional public notice may be required in areas that may be affected by the transfer proposal. The public notice of each individual application for transfer must include the following information, in the following order:

(a) Applicant's name and city or county of residence;

(b) Application number assigned by ecology;

(c) Water right priority date;

(d) Description of the water right to be transferred, including any identifying number, the location of point of diversion or withdrawal, place of use, and instantaneous and annual quantities authorized;

(e) Proposed transfers to be made, including location of point of diversion or withdrawal, place of use, or instantaneous and annual quantities authorized;

(f) Manner and time limit for filing protests with ecology under RCW 90.03.470; and

(g) Manner and time limit for intervening before the board under RCW 90.80.070(4).

A copy of the public notice will be sent to ecology's regional office.

(2) Before acting on an application, the board must first receive a notarized affidavit of publication from each newspaper in which notice was published verifying that publication correctly occurred. The board must also allow at least thirty days for the filing of protests or objections following the last date of publication of the notice before making a final decision.

(3) When an applicant substantively amends the application for a transfer of a water right subsequent to publication of the notice, or when a substantive error or omission occurs in the publication, the public notice must be republished in all newspapers of original publication, and reviewing agencies must be sent corrected copies of any amended transfer proposal.

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(1) A protest of an application that has been filed with a water conservancy board must be received by ecology with the two-dollar protest fee within thirty days of the last date of publication of the public notice. Ecology will consider all pertinent protests during its review of the board's conditional decision on the application. Persons inquiring of the board or ecology regarding protest procedures will be directed to file the protest with ecology. Ecology will provide a copy of the protest to the appropriate board.

(2) A valid protest must include the name, address and phone number (if any) of the protesting party; identification of the transfer proposal being protested; and a statement regarding the basis for the protest. Proper basis for a protest must include:

(a) The impacts of the proposed transfer on other water rights; or

(b) The impacts of the proposed transfer on the public interest; or

(c) A challenge to the potential extent and validity of the water right proposed to be transferred.

(3) The board must immediately forward to ecology any protests that it receives in error, accompanied by the two-dollar protest fee if it was included with the protest.

(4) Any protest received thirty days after the last date of publication of the public notice, or without the required fee, will be filed as a letter of concern.

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(1) A water conservancy board shall make its conditional decision on a transfer application based on applicable state law, rules, policies, and ecology guidance. In addition to specific water law, other relevant state laws, including the Growth Management Act, must be considered.

(2) Generally, a board should conduct a field examination of the site of the proposal, clarify any unclear information by contacting the applicant, and discuss the concerns of protesters and objectors with the persons who filed them. All relevant information must be collected and considered in the examination. Detailed hydrological or hydrogeological information may need to be collected or other research conducted or compiled. A board may require the applicant to provide additional information at the applicant's expense if that information is necessary to render an informed conditional decision on the application.

(3) A board must consider all comments received about the pending application. In this process, boards should determine whether an Indian tribe, watershed planning unit, or other governmental body is involved in planning or water management related to the source of water that would be affected by the application. If this is the case, the board should engage the tribe, watershed planning unit or governmental body in the board's effort to obtain information concerning the application.

(4) A water conservancy board must evaluate the application, including the entire water rights record, and determine whether or not the transfer as proposed is in accordance with applicable laws, rules, policies and guidelines of ecology. The board must also make a tentative determination as to the extent and validity of the water right proposed to be transferred, whether the transfer can be made without injury or detriment to existing rights, and whether the proposed transfer is not detrimental to the public interest.

(5) A water conservancy board shall ensure that the requirements of the State Environmental Policy Act (SEPA), chapter 43.21C RCW, and the SEPA rules, chapter 197-11 WAC, have been met before finalizing a conditional decision, and if determined by the board to be appropriate under WAC 197-11-922 through 197-11-944, the board will be the lead agency for SEPA compliance.

(6) A water conservancy board shall consult with ecology if it encounters new, unusual, or controversial issues in the course of examining an application. Ecology will provide assistance and advice as to how to proceed in accordance with state law, rule, policy and sound administrative practice.

(7) If a geographical area within the jurisdiction of a conservancy board is or becomes the subject of an adjudication conducted by a superior court for the determination of water rights, ecology will seek guidance from the superior court regarding the court's role in administering the water rights that are subject to the adjudication. Thereafter, ecology shall advise the conservancy board on whether and how the board may proceed to evaluate and make conditional decisions on applications for transfers of water rights that are subject to the adjudication being conducted by the superior court. When a board receives an application for transfer of a water right that is in an area subject to an ongoing general water rights adjudication process, and a public notice has been published, the board must send a copy of the public notice regarding the application to ecology, which will then submit the notice to the court conducting the adjudication. When a board makes a conditional decision on a transfer of a water right that is in an area subject to an ongoing general water rights adjudication process, a copy of the conditional decision must be sent to ecology, which will forward the conditional decision to the court conducting the adjudication.

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(1) Any water right holder claiming detriment or injury to an existing water right may intervene in the application review process before the water conservancy board. Actions by the water conservancy board are independent from those of ecology. Ecology's final decisions based upon water conservancy board's conditional decisions are subject to administrative and judicial review.

(2) A party who intervenes in a water conservancy board conditional decision is not considered to be a protesting party unless the party has also filed a timely protest with ecology. Protests must be filed with ecology in accordance with WAC 508-12-120 and will be evaluated by ecology concurrently with its review of the water conservancy board conditional decision. Ecology will also consider other objections and comments in the record, including the record of any hearings held by the board, when it makes its review of the board's conditional decision.

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(1) The water conservancy board's conditional decision must be in writing, and its record of decision becomes part of the public record.

(2) For applications that are proposed to be denied, the water conservancy board will issue a record of decision denying the transfer, subject to review and final determination by ecology.

(3) For applications for transfer that are proposed to be affirmed, the water conservancy board will issue the applicant a record of decision and a certificate of conditional approval, subject to review and final approval by ecology.

(4) The record of decision along with either the certificate of conditional approval or the notice of denial will each address the following:

(a) Within a section entitled "background":

(i) A description of the water right proposed for transfer to include the ecology-assigned application number, and the board's tentative determination as to the validity and quantification of the right, together with a description of the historical water use information that was considered by the board;

(ii) A description of any protests, objections or comments, including comments provided by other agencies, Indian tribes, or other interested parties, and the board's analysis of each issue considered, including the name and address of individual intervenors;

(iii) A discussion explaining compliance with the State Environmental Policy Act;

(b) Within a section entitled "investigation":

(i) An analysis of the effect of the proposed transfer on other water rights, pending applications, and instream flows established under state law;

(ii) A narrative description of any other water rights or other water uses associated with both the current and proposed place of use and an explanation of how those other rights or uses will be exercised in harmony with the right proposed to be transferred;

(iii) An analysis of the effect of the transfer on the public interest;

(iv) Any conditional decision or conclusion that an existing water right or portion of a water right has been relinquished or abandoned due to nonuse;

(v) A description of the results of any geologic, hydrogeologic or other scientific investigations that were considered by the board;

(c) Within a section entitled "conclusion": A list of conclusions that the board drew from the information related to the transfer proposal;

(d) Within a section entitled "conditional decision": A complete description of the board's conditional decision;

(e) Within a section entitled "provisions":

(i) Conditions and limitations recommended for inclusion in an approval or other corrective action necessary to maintain the water use in compliance with state laws or rules;

(ii) A description of any requirement to mitigate adverse effects on other water rights, the water source, or the public interest; and

(iii) A schedule for development and completion of the transfer to a water right, if approved in part or in whole, that includes a definite date for completion of the transfer and the application of water to authorized beneficial use.

(5) A water conservancy board's conditional decision and certificate is not a final authorization to transfer the water right. Only after ecology has approved the conditional decision and has issued an order authorizing the transfer, or has failed to act within the time frame established in RCW 90.80.080, is the applicant allowed to initiate the transfer of the water right.

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(1) The water conservancy board shall send notice of its conditional decision as to whether the transfer should be approved or denied, by mail to the applicant, ecology, to any person who protested or objected to the transfer, to any persons who requested notice of its conditional decision, and to any commenting agency or tribe. The board shall transmit notification of its conditional decisions to all parties on the same day, and will note that it has been sent to ecology. Ecology shall identify the location designated for submission of the board's conditional decision.

(2) Boards must fully document their process of arriving at a conditional decision regarding water right applications. All original public documents received or developed by a water conservancy board and used during its deliberations for decision making for each application for transfer of a water right must be sent, with a clear copy of the conditional decision, to ecology at the location designated by ecology for permanent recordkeeping, within seven working days after the board has rendered its conditional decision. The board must retain a copy of all documents; any documents used in reaching a conditional decision regarding a water right transfer application must not be destroyed or disposed of, except as allowed by state statute.

(3) Any comments or objections that are received by the water conservancy board on its conditional decision within thirty days after a final decision is issued by ecology must be forwarded to ecology within five working days, at the location designated for submission of the board's determination.

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(1) Ecology will review conditional decisions of approvals and denials made by water conservancy boards. Upon receipt of a conditional decision made by a water conservancy board, ecology will review the conditional decision for compliance with state water laws and rules, policies or guidelines. As part of this review, ecology will also consider agency and tribal comments, any protests or objections filed by parties alleging that one or more of their water rights would be impaired by the transfer, and any other comments received regarding the conditional decision by the board.

(2) Ecology may affirm, reverse, or modify the conditional decision of the board. Ecology's decision will be made in the form of a written administrative order and must be issued within forty-five days of receipt of the board's conditional decision. If ecology fails to act within the forty-five-day time period, the board's conditional decision becomes final. The forty-five-day time period may be extended an additional thirty days by ecology's director upon the written consent of the parties to the transfer.

(3) If ecology modifies the conditional decision by the water conservancy board, ecology shall send a notice of modification of the conditional decision that specifies which parts of the conditional decision it was in agreement with, and which parts of the conditional decision it has modified. If ecology reverses the conditional decision by the conservancy board, ecology shall send a notice of reversal of the conditional decision with an explanation of the reversal.

(4) Ecology will send notice of its decision to all parties on the same day. Notice of ecology's decision will be sent by mail within five working days to the water conservancy board, the applicant, any person who protested or intervened before the board, persons who requested notice of its decision, the Washington department of fish and wildlife, and any affected Indian tribe.

(5) If ecology fails to act within the specified time after receipt of the board's conditional decision, the board's action is final. The conservancy board shall notify ecology, the applicant, and any parties that have expressed interest to the conservancy board about the application, of ecology's failure to act. If ecology concurs that the review period has lapsed, ecology will send a notice to the board that the conditional decision is final.

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(1) When an approved transfer has been perfected, the person authorized to transfer a water right must submit evidence to ecology showing the transfer has been completed in accordance with the order authorizing the transfer of the water right. Ecology will issue a change certificate or a superseding certificate to the water right holder(s) to document that the approved transfer was accomplished upon verification of the extent of development as authorized. When the document is issued, ecology shall provide a copy to the conservancy board for its records if requested. The document will also be recorded at the applicant's expense by the county in which the use of water is made.

(2) If development of the approved transfer is not completed in accordance with the development schedule that accompanies the approval, extensions may be requested and will be processed under standard procedures by ecology.

(3) If the person authorized to transfer a water right fails to accomplish the transfer in accordance with the authorization, ecology will cancel the transfer authorization and the water right will revert to the original configuration, less any quantity that was relinquished for nonuse in connection with ecology's review of the conservancy board's conditional decision.

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Boards are required to submit reports to ecology on their activities at the end of October of each even-numbered year. The reports must include information about board activities during the previous twenty-four months. The reports shall contain the following information:

(1) Information about applications to the board to include the following:

(a) Number of applications filed with the board by water resources inventory area (WRIA);

(b) Number of applications that received a public hearing to hear intervenors;

(c) Number of conditional decisions approving or partially approving an application;

(d) Number of conditional decisions denying an application;

(e) Number of applications for transfer of surface or ground water;

(f) Number of applications to transfer a claim or certificate;

(g) Number of applications filed directly with the conservancy board, and number transferred from ecology to the board; and

(h) Number of hearings held within other counties when water rights were proposed to be changed between counties.

(2) Operations of the board to include the following:

(a) Chairperson of the board;

(b) Changes in membership of the board, including background and contact information for any new members;

(c) Current fees or changes to previous fees;

(d) Training received other than from ecology;

(e) Ownership of any properties by the conservancy board;

(f) Water marketing activities and any related fees;

(g) Number of staff that are employed by, and staff that provide volunteer service to, the board; and

(h) Any litigation in which the board is involved.

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Any person aggrieved by ecology's decision to approve or disapprove the establishment of a conservancy board, or ecology's decision to affirm, reverse or modify the determination of a conservancy board on an application for transfer of a water right, may appeal the decision to the state pollution control hearings board in accordance with chapter 43.21B RCW.

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Nothing in this chapter is intended to impair any existing water rights.

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This chapter must be reviewed by ecology whenever new information, changing conditions, or statutory modifications make it necessary to consider revisions. In carrying out a review of this chapter, ecology shall consult with existing conservancy boards.

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