WSR 05-06-117

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 04-11 -- Filed March 2, 2005, 11:27 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-17-134.

Title of Rule and Other Identifying Information: The rule will establish chapter 173-546 WAC, a water resource management program for the Entiat River watershed (WRIA 46). The rule will govern water allocation, adopt instream flows, make a determination regarding water availability in the basin, and reserve water for future out-of-stream uses meeting certain criteria.

Hearing Location(s): Entiat Grange Hall, 14108 Kinzel Street, Entiat, WA, on April 14, 2005, at 7:00 p.m.

Date of Intended Adoption: August 3, 2005.

Submit Written Comments to: Thom Lufkin, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6631, e-mail Entiat@ecy.wa.gov, fax (360) 407-6574, by April 29, 2005.

Assistance for Persons with Disabilities: Contact Judy Beitel by April 7, 2005, TTY (800) 833-6388 or (360) 407-6878.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule will establish a water resource management program for the Entiat River watershed (WRIA 46). The rule will govern water allocation, adopt instream flows, make a determination regarding water availability in the basin, and reserve water for future out-of-stream uses meeting certain criteria.

Reasons Supporting Proposal: This rule was developed in coordination with the recommendations of the Entiat WRIA planning unit (EWPU). The EWPU is comprised of two environmental organizations (Audubon and the NW Ecosystem Alliance), the Yakama Nation, several federal agencies (e.g., the Natural Resources Conservation Service and United States Forest Service), the City of Entiat, Entiat Irrigation District, Chelan County, several local business interests (Longview Fiber, local partnership ditch companies), landowners, and other interested parties in the watershed. This rule is needed to fulfill the statutory requirements of chapters 90.54 and 90.82 RCW.

Statutory Authority for Adoption: Chapters 43.27A, 90.54, 90.22, and 90.82 RCW.

Statute Being Implemented: Chapters 90.54, 90.22, and 90.82 RCW.

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

Name of Proponent: Department of Ecology, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: John Monahan, Central Regional Office, 15 West Yakima Avenue, Suite 200, Yakima, WA 98902, (509) 457-7112; Enforcement: ECY CRO Water Resources Program, Central Regional Office, 15 West Yakima Avenue, Suite 200, Yakima, WA 98902, (509) 457-7112.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

The Washington State Department of Ecology's (ecology) water resources program is proposing to adopt a water resources management program for the Entiat River basin to:

Retain perennial rivers, streams, and lakes in the Lower and Upper Entiat River basin with instream flows and levels necessary to protect and preserve instream values, and instream flows;

Provide water to satisfy domestic, stockwatering, outdoor irrigation, commercial agriculture and commercial and light industrial uses via the establishment of a reservation of uninterruptible water supply;

Provide for a maximum allocation of surface-waters of the Entiat River watershed during periods of high flow; and,

Set forth ecology's policies to guide the protection, utilization and management of Entiat River basin surface water and interrelated groundwater resources for use in future water allocation decisions.

The Entiat River basin is designated as water resource inventory area 46 (WRIA 46) in chapter 173-500 WAC. The proposed rule is chapter 173-546 WAC. Ecology is developing and issuing this small business economic impact statement (SBEIS) as part of its rule adoption process and pursuant to chapter 19.85 RCW. Ecology intends to use the information developed in the SBEIS to ensure that the proposed rule is consistent with legislative policy.

DESCRIPTION AND PURPOSE OF THE SBEIS: The objective of this SBEIS is to identify and evaluate the various requirements and costs that the proposed rule might impose on business. In particular, the SBEIS examines whether the costs on businesses that might be imposed by the proposed rule impose a disproportionate impact on the state's small businesses. The specific purpose and required contents of the SBEIS is described in RCW 19.85.040.1


1. DISCUSSION OF COMPLIANCE COSTS FOR WRIA 46 BUSINESSES.

INTRODUCTION: The evaluation of the impacts of the proposed rule is based on analysis and comparison of water right management before and after the effective date of the rule. Current water right administration is based on an extensive and complex legal and administrative framework. The framework includes administrative procedures for applications for both new water rights and changes to existing water rights, and the use of water by permit-exempt wells (RCW 90.44.050). Implementation of chapters 90.22, 90.54, and 90.82 RCW are also part of this legal baseline. In proposing a reservation of water, the proposed rule creates new conditions that must be considered when making future water right decisions. A brief description of compliance requirements is provided below. A detailed description of water management under the existing and proposed rules can be found in Appendix B.

A significant component in describing the impacts of the proposed rule involves describing the baseline from which the change caused by the rule is measured. In the case of the Entiat River, there is no existing in-stream flow rule in place. However, the Watershed Planning Act, requires that ecology complete an instream flow rule when planning units propose flows and meet the requirements of RCW 90.82.080. It also indicates that the rule is not considered "a significant legislative rule." The planning unit has met these requirements and so the baseline considered in this document assumes an instream flow rule is adopted (as required by law) similar to the proposed rule but without the proposed reservation.

However, it is possible that an instream flow rule would not be adopted even if the proposed rule was not adopted (e.g. if legal action precluded basic instream flow rule making). In this case, the existing water management scenario would continue into the future. In an effort to better inform the rule making, ecology has elected to consider the possibility that the existing management scenario would continue as an alternative baseline. This analysis can be found in Appendix C.

WATER RIGHT ADMINISTRATION UNDER THE RULE: The proposed rule (chapter 173-546 WAC) will create a water right for instream resources, protected from impairment by those junior in priority date to the instream flows. The rule will also create a reservation of water for out-of-stream uses senior to the instream flows and clarifies other requirements that might affect future uses. Expected impacts to water management include the following:2

Surface Water: The decision process for surface water rights will be similar after the proposed rule as before. Under the baseline, ecology would grant water rights that would be required to curtail use when the senior minimum instream flows are not being attained.

Under the proposed rule, all new surface water rights that utilize the reservation will receive an uninterruptible supply of water. New surface water rights that do not use the reservation as their source, would be "junior" to the instream flow levels and would be required to curtail withdrawing water when minimum flows are not met in the surface water source. This is not likely to represent a significant change under the proposed rule since under both scenarios new out-of-stream uses would be subject to similar instream flow provisions, with the exception of the availability of senior water from the reserve provided in the proposed rule. Additionally, under both the baseline and the proposed rule, applications for new consumptive surface water rights could potentially be approved if it is "clear that overriding considerations of the public interest will be served."

Groundwater: The decision process if the proposed rule is adopted and in effect, is the same as under the baseline, with the notable exception of "senior" water made available from the reserve in the proposed rule. Groundwater applications in hydraulic continuity with the Entiat River would be subject to the instream flows under the baseline or the proposed rule unless they proposed to obtain water via the reservation under the proposed rule. Under both the proposed rule and the baseline, a use may be approved if it is "clear that overriding considerations of the public interest will be served."

Based on the analysis and recommendations in the Entiat WRIA management plan regarding hydrogeology of the basin, and the location and depth where groundwater withdrawals generally occur, future groundwater withdrawals have a high likelihood of capturing water that would result in impacts to surface water flows and levels in the Entiat River basin. The proposed rule does not create the need for, and does not change the standards for, the analysis regarding whether these impacts cause impairment. However, businesses that initiate new agricultural, commercial, or manufacturing projects relying on wells for process water would be required to suspend water use during periods of low flows, develop storage mechanisms or develop mitigation strategies acceptable to ecology that allow them to mitigate their impacts if water is obtained outside the reservation. This would be the case under the baseline and would not represent an impact of the proposed rule. Both the proposed rule and the baseline allow for an applicant for a new groundwater use to demonstrate that the proposed water use is not in hydraulic continuity with the surface waters of the Entiat River. Both the proposed rule and the basic instream rule would allow for an applicant to mitigate for any impacts to instream flows, thus enabling continuous use of water out-of-stream.

Permit-Exempt Groundwater: A reservation of ground water is proposed for the future uses of residential, commercial, industrial and agricultural uses and provides a management framework for these types of withdrawals. For businesses interested in using an exempt well, there would be several alternatives. Applicants could solicit a hydrogeologist to certify that a well would not cause impairment of a water right in areas where hydraulic continuity between the surface water and groundwater is not likely. This would allow an applicant to develop a well as though the proposed rule or baseline was not in place, but at the additional cost of the analysis. For wells that would be drilled in areas where they are likely to be in hydraulic continuity with streams with instream flows, such that impairment would result, options include obtaining water from the reservation or accepting an interruptible water right with corresponding curtailment or storage. Under the proposed rule, the applicant would only be able to get uninterruptible permit-exempt well water through the reservation. Those that attempted to use a permit-exempt well outside of the reservation would be required to curtail water use during low flow periods or be denied. Under the baseline, there would be no provision for exempt wells during low flow periods and legally they would be required to curtail use during these periods or they would be denied.

Changes or Transfers of Water Rights: Existing water rights will continue to be changed or transferred as permitted by chapters 90.03 and 90.44 RCW and the process would be the same with the proposed rule as with the baseline. Transfers of surface water rights would be evaluated considering the instream flow right as they would be under the baseline. Requirements related to changes in the point of diversion from a surface point to a ground water point, if it is from the same water source, are the same in the baseline and the proposed rule.

Reservation of Water: The reservation of water, use of water under the reservation, and associated conditions for that use, are all part of the rule proposal. In large measure, the reservation will allow residential, commercial, industrial and agricultural development to continue as before with the benefit of having a continuous, reliable source of water during low flow periods, except for a few restrictions. These restrictions include irrigation limitations and the finite quantity of the reservation. Domestic water use must also meet efficiency standards.

IMPACTS TO BUSINESSES IN WRIA 46: The primary impact to businesses of the proposed rule making will likely be the creation of a reservation for future allocations. Existing water rights holders will not be directly affected. In general, the economic costs to businesses are determined based on the business impacts from having less water in the river, but more available for out-of-stream use. Having the reservation makes more water available for out-of-stream uses than would have been the case under the baseline and so it is likely most businesses will be positively affected. The only exception to this would be businesses that utilize water in the river. More specifically, the following potential impacts are possible.

1. Impacts to Businesses Depending on Instream Flows: As mentioned above, a reservation is to be created from which those seeking water for domestic, stockwatering, commercial agricultural and commercial/light industrial uses and meeting the proposed requirements will be able to obtain water in the future. Accessing the reservation will allow entities to use water for various uses during low flow periods. This may slightly reduce the amount of water in the river during certain low flow periods during certain years and could potentially indirectly impact instream benefits such as ecosystem services, recreation, etc. For businesses that provide guide services such as rafting, fishing and bird watching, or those dependent on dilution for waste removal, there could be a very minor impact. However, discussions with local interests indicate that little, if any, impact from the proposed flow reductions will result from establishment of the reservation.

2. Creation of the Reservation: Under the baseline, any groundwater withdrawal, including those via exempt wells in continuity with the Entiat River or its tributaries, would be legally required to curtail use during low flow periods. Under the reservation, some or all of the future needs of residential, commercial, industrial and agricultural uses could be met even during low flow periods. For businesses developing land for residential construction, or requiring process or irrigation water, the ability to use water during low flows should be a net benefit from this rule making. The reservation of water for stockwatering will provide year-around access to water for new stockwatering uses, except for feedlots and other activities which are not related to normal grazing uses. Under the baseline, stockwater accessed via permitted or permit-exempt wells would be legally required to curtail use during low flow periods. The change in the rule should be a net benefit to stock-related businesses.

3. Impacts to Existing Permitted Water Rights: Allowing access to water from the reservation that allows water withdrawals could affect the value of existing permitted water rights held by some businesses. The exact effect will depend on the allowable use, volume and point of diversion of existing rights, existing uses and the desired uses and volumes of proposed rights.

COST TO FIRMS AND REQUIRED PROFESSIONAL SERVICES: As mentioned above, the impacts of the proposed rule will most likely be experienced by those business entities that depend on water in the river or the beneficial impacts to those businesses that would obtain water from the reservation. The following cost analyses required in chapter 19.85 RCW has been provided:

Reporting and Record keeping: No additional reporting or record keeping will be required.

Additional Professional Services: Some may save the costs associated with mitigation options such as construction of storage tanks and associated water system facilities requiring engineering design services associated with interruptible water rights if access to the reservation allows them to avoid these requirements. Those that would have transferred rights might avoid the use of hydrogeologists, biologists, engineers and attorneys.

Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: No additional equipment, supplies, labor or administrative costs are anticipated. Although, as mentioned above, if some applicants are able to avoid a more sophisticated conservation or water use system, this may decrease the cost of professional services and equipment.

Other Compliance Requirements: As mentioned above, potential adverse impacts may be incurred by firms that depend on instream activities and potentially those that hold existing permits. The impacts to instream users would be specific to the firm, but is unlikely to be significant since few firms are dependent on instream flows.3

Existing water right holders could be impacted if the value of their water right changes as a result of this rule. This would ultimately only affect those that want to transfer or lease a right and only for the period of the reservation. The exact cost impact is difficult to determine since it depends on many factors. Only two transfers have been executed in the past ten years. If this rate continues, it is unlikely to be significant. Moreover, the reservation would tend to increase the availability of water relative to the baseline and decrease the incentive to transfer water in the future.

Creation of the reservation should be a net benefit for most businesses that need water. Water that is not available during low flow periods is damaging to any business that needs it for its own use or who are looking to develop residential or commercial properties. In order to have water available during low flow periods under the baseline, water would have to be obtained though leases, transfers or on-site storage. On-site storage for a low flow period can cost approximately $10,000-$15,0004 for a typical residence and the proposed rule would allow this cost to be avoided for those that utilize the reservation. For other users, the cost of storage would likely preclude it as an option. Agricultural users would likely be required to purchase or transfer water absent the proposed rule. The median quantity of irrigation water requested from pending applications amounts to approximately thirteen acre-ft. Agricultural water ranges in value from $40-$120/acre-ft.5 Using a mean value of $80/acre-ft. would yield an avoided cost of between $960 and $1040 per year for every low flow year. This analysis assumes that water would be readily available to be transferred or leased. If this was not the case, then prices would likely be significantly higher. The stockwatering reservation would likely yield an avoided cost reflecting the quantity required at a similar unit cost as for agriculture. For those that do not require water for domestic needs during low flow periods, an interruptible right remains an option under both the current and proposed rule.


2. REVENUE IMPACTS AND DISTRIBUTION OF COSTS.

INTRODUCTION: RCW 19.85.040 requires that additional analysis of impacts be provided. Specifically, the analysis should include whether compliance with this rule will cause businesses to lose sales or revenue and whether the proposed rule will have a disproportionate impact on small business. It is the purpose of this section to evaluate the proposed rule to consider these requirements.

REVENUE IMPACTS: As noted previously, the most likely significant impacts are associated with decreased flows in the river and the creation of the reservation. The reduction of flows in the river is unlikely to significantly affect any firms along the Entiat. However, those firms that will now be able to access water from the reservation will experience a benefit from being able to access water without constructing expensive storage alternatives or purchasing or leasing rights as would be required under the baseline. An instream flow rule would limit uses in exempt wells to periods of time when flows are adequate. It is estimated that summer flows will not meet the minimum instream flows in a majority of years and that storage would likely be required for most domestic uses absent the rule. In that sense, the rule will represent a negative cost (net benefit) to firms. The net benefit to firms is the value of avoiding expensive storage, or purchasing or leasing water rights or other mitigation alternatives to access water during periods of low flow. This will likely lower costs to some potential water users and to that extent, may increase revenues.

Existing water rights holders might see some reduction in the value of existing water rights and this would lower revenues. However, as mentioned above, this effect is likely to be relatively small and is not further considered.

DISTRIBUTION OF COMPLIANCE COSTS: The distribution of compliance costs can be analyzed by evaluating existing business-owned developable parcels. The proposed reservation would yield a net benefit to any business-owned parcels in the watershed under the baseline since on-site storage, leasing or transfers would not have to be provided. The exact amount and distribution of the benefit will depend on the size of parcels, ownership, firm size and zoning and yields the distribution of costs in Table 2.1.

Table 2.1. Distribution of Compliance Benefits (Avoided Costs) for Business-Owned Exempt Well Development6

Number

of Firms7

Average

Employment

(No. of

Employees)

Average

Benefit per

Employee8

($1000)

Median

Benefit Per

Employee

($1000)

Small

Firms

2 1-3 $35.0 $35.0
Large

Firms

5 340-1170 $9.2 $6.7

The values listed in Table 2.1 represent the average avoided storage costs (net benefits) for small and large firms assuming full residential build-out using permit-exempt wells and all business-owned parcels where employment values could be obtained. As can be seen the median avoided cost for small firms exceeds that for large firms by a ratio of 5.2:1. It is important to note that the large avoided cost is based [on] the assumption of full development of all parcels. If a firm (small or large) developed only a portion of their parcels, then the avoided cost would be smaller.

Pending new applications for water rights were also evaluated to consider the impacts of the proposed rule. All new applications for water rights are individual applications with the exception of one. Thirty of the thirty-two indicated irrigation as at least part of the purpose of their request. Although chapter 19.85 RCW does not necessarily include individual farmers as business-entities, the reservation should be a benefit to most of these uses that will allow them to avoid purchasing rights from other locations. Given these are individual farmers; the impacts would be disproportionately beneficial to these small entities.

Overall, the data suggests that the impacts of the proposed rule will be disproportionately beneficial to small businesses under the baseline.

CONCLUSIONS: All firms of all sizes that elect to use the reservation are likely to experience a negative cost (net benefit) from the rule and it appears the rule will disproportionately benefit small businesses.


3. ACTIONS TAKEN TO REDUCE THE IMPACT ON SMALL BUSINESS.

As noted above, it is unlikely that there will be significant adverse impacts on businesses (small or large) as part of this rule making under the baseline. Therefore, no specific measures have been taken to reduce or mitigate these rule impacts. In general, mitigation options, and allowed uses under the reservation should provide for flexibility in obtaining water for beneficial uses. There are no additional record-keeping, reporting requirements or inspections and compliance timetables and fine schedules are not altered by the proposed rule.


4. HOW WAS SMALL BUSINESS INVOLVED IN THE DEVELOPMENT OF THIS RULE?

The proposed rule has been developed as an outcome of the watershed planning process. This is an open process allowing for comment and participation by all entities as the project has proceeded. After the filing of the CR-102, official public hearings will be held to consider the rule and allowing small businesses to provide additional input.


5. LIST OF INDUSTRIES REQUIRED TO COMPLY.

No industries are required to comply with the proposed rule unless they seek to obtain new water rights in the covered area. However, requirements affecting water use are likely to translate into changes in property values based on impacts to the highest valued uses in the watershed. As such, existing business owners of undeveloped property are likely to be the industries that will be required to "comply" either directly in terms of attempting to acquire water or indirectly in terms of changes in asset values. Therefore, the following list is provided indicating Standard Industrial Codes (SIC) for existing developable properties in the Entiat watershed.9

Table 5.1. Industries Likely Required to Comply with the Rule

SIC Code Description SIC Code Description
0175 Deciduous Tree Fruits 6035 Federal savings institutions
2631 Paperboard mills 6162 Mortgage banks and correspondents
5148 Fresh fruits and vegetables 6211 Security brokers and dealers
6029 Commercial banks, nec. 8742 Management consulting services

1 Due to size limitations relating to the filing of documents with the code reviser, the SBEIS does not contain the appendices that further explain ecology's analysis. Additionally, it does not contain the raw data used in this analysis, or all of ecology's analysis of this data. However, this information is being placed in the rule-making file, and is available upon request.

2 As mentioned previously, the baseline for the analysis assumes that there is a basic instream flow rule in place that meets the requirements of chapter 90.82 RCW.

3 Conversations with local interests indicate few commercial activities dependent on instream flows.

4 Cost assumes two-5,000 gallon underground potable-water rated tanks.

5 Based on Columbia River Basin Project for Water from "Economics of the Columbia River Initiative."

6 Costs assume full development of all business-owned developable parcels.

7 The total number of firms represents all businesses located in the county listed as owner of the parcel and where Employment Security data could be located.

8 Cost comparisons use the largest 10% of firms required to comply.

9 The table was constructed based on data provided by the Chelan County Assessor and by the Washington State Employment Security Department.

A copy of the statement may be obtained by contacting Thom Lufkin, Water Resources, Department of Ecology, P.O. Box 47600, Olympia, WA 98503-7600 [98504-7600], phone (360) 407-6631, fax (360) 407-6574, e-mail Entiat@ecy.wa.gov, or by downloading from ecology's webpage at http://www.ecy.wa.gov/laws-rules/activity/wac173546.html.

A cost-benefit analysis is not required under RCW 34.05.328. Ecology has decided to voluntarily comply with the requirements under RCW 34.05.328. A preliminary maximum net benefits analysis is available. This document includes the preliminary cost-benefit analysis, required in RCW 34.05.328. It may be obtained by contacting Thom Lufkin, Water Resources, Department of Ecology, P.O. Box 47600, Olympia, WA 98503-7600 [98504-7600], phone (360) 407-6631, fax (360) 407-6574, e-mail Entiat@ecy.wa.gov, or by downloading from ecology's webpage at http://www.ecy.wa.gov/laws-rules/activity/wac173546.html.

March 2, 2005

Polly Zehm

Deputy Director

OTS-7816.2

Chapter 173-546 WAC

WATER RESOURCES MANAGEMENT PROGRAM -- ENTIAT RIVER BASIN WATER RESOURCE INVENTORY AREA (WRIA) 46


NEW SECTION
WAC 173-546-010   General provisions -- Authority and applicability.   (1) This chapter is adopted under the authority of the Watershed Planning Act (chapter 90.82 RCW), Water Resources Act of 1971 (chapter 90.54 RCW), Minimum Water Flows and Levels Act (chapter 90.22 RCW), Water resource management (chapter 90.42 RCW), Regulation of public ground waters (chapter 90.44 RCW) and the Water resources management program rule (chapter 173-500 WAC).

(2) This chapter, including any subsequent additions and amendments, applies to all surface waters in the Entiat River basin, and all ground water hydraulically connected with those surface waters.

(3) This chapter shall not affect existing water rights, including perfected riparian rights, federal Indian and non-Indian reserved rights, or other appropriative rights existing on the effective date of this chapter, unless otherwise provided for in the conditions of the water right in question.

(4) This chapter does not limit the department's authority to establish flow requirements or conditions under other laws, including hydropower licensing under RCW 90.48.260.

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NEW SECTION
WAC 173-546-020   Purpose.   (1) In enacting this chapter, the department uses the Entiat watershed plan as the framework for making future water resource decisions for the Entiat watershed, per RCW 90.82.130. The plan recommendations were approved by the Entiat watershed planning unit, a group composed of a broad base of water use interests, and also by Chelan County officials. The plan recommendations are therefore considered an expression of the public interest.

(2) The chapter creates a reservation for future uses that is senior to the instream flows set in WAC 173-546-050.

(3) This chapter sets forth the department's policies to guide the protection, use and management of Entiat River basin surface water and interrelated ground water resources. It protects existing water rights, establishes instream flows, and sets forth a program for the administration of future water allocation and use.

(4) The purpose of this chapter is to retain perennial rivers, streams, and lakes in the Entiat River basin with the instream flows and levels necessary to protect and preserve wildlife, fish, scenic, aesthetic, recreation, water quality and other environmental values, navigational values, and stock watering requirements.

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NEW SECTION
WAC 173-546-030   Definitions.   For the purposes of this chapter, the following definitions shall be used:

(1) "Allocation" means the designation of specific amounts of water for specific beneficial uses.

(2) "Appropriation" means the process of legally acquiring the right to specific amounts of water for beneficial uses, as consistent with the requirements of the ground and surface water codes and other applicable water resource statutes.

(3) "Beneficial uses" means uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, thermal power production, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state.

(4) "Commercial agriculture" means uses related to commercial orchards and vineyards, and commercial livestock and farming operations.

(5) "Commercial/light industrial" means a water supply for use by small businesses and commercial users. It also refers to the "value added" uses associated with agriculture, as defined by the Chelan County Code, Ch. 11.04.010, or any subsequent amendments. A "value added operation" means any activity or process that allows farmers to retain ownership and that alters the original agricultural product or commodity for the purpose of gaining a marketing advantage.

(6) "Consumptive use" means a use of water that reduces the amount of water in the water source.

(7) "Department" means the Washington state department of ecology.

(8) "Domestic water use" means, for the purposes of this chapter, use of water associated with human health and welfare requirements, including water used for drinking, bathing, sanitary purposes, cooking, laundering, irrigation of not over one-half acre of lawn or garden per dwelling, and other incidental household uses. Stock watering is also included in this category. Stock watering uses must be consistent with the Chelan County Code, Section 11.88.030 or any subsequent amendments. It does not apply to feed lots and other activities which are not related to normal grazing land uses.

(9) "Existing water right" includes perfected riparian rights, federal Indian and non-Indian reserved rights or other appropriative rights.

(10) "Hydraulic continuity" means the interrelation between ground water (water beneath land surfaces or surface water bodies) and surface water (water above ground, such as lakes and streams).

(11) "Instream flow" as used in this chapter, has the same meaning as a minimum instream flow under chapter 90.82 RCW, a base flow under chapter 90.54 RCW, a minimum flow under chapter 90.03 or 90.22 RCW and an administrative flow in the Entiat watershed plan.

(12) "Nonconsumptive use" means a use of water that does not reduce the amount of water in the water source.

(13) "Plan" or "watershed plan" means the Entiat water resource inventory area (WRIA) management plan, approved by the Entiat WRIA planning unit on May 17, 2004, and by the Chelan County commissioners on September 13, 2004.

(14) "Planning unit" means the Entiat water resource inventory area (WRIA) planning unit (EWPU), or a successor which is mutually agreed upon by the EWPU. The planning unit was established in 1998 in accordance with chapter 90.82 RCW, Watershed Planning Act. The EWPU presently consists of the landowner steering committee, the Yakama Nation, a technical assistance group, and other interested stakeholders.

(15) "Public water system" means any system providing water for human consumption through pipes or other constructed conveyances, excluding a system serving only one single-family residence or a system with four or fewer connections all of which serve residences on the same farm. (Consistent with WAC 246-290-020; any subsequent amendments to WAC 246-290-020 will be incorporated by reference.)

(16) "Reservation" means an allocation of water set aside for future domestic, stock watering, agricultural, commercial and industrial beneficial uses. For the purposes of this chapter, the priority date of the reservation is senior to the instream flows set in WAC 173-546-050. "Reservation" is the same as "reserved water" in the Entiat WRIA management plan.

(17) "Stream management unit" means a stream segment, reach, or tributary used to describe the part of the relevant stream to which a particular use, action, instream flow level or reserve of water applies. Each of these units contains a control station. A map of the control points is included in this chapter (WAC 173-546-150).

(18) "Withdrawal" means the appropriation or use of ground water or surface water.

(19) "WRIA" means water resource inventory area. This term can be used interchangeably with "basin" and "watershed."

[]


NEW SECTION
WAC 173-546-040   Establishment of stream management units.   The department hereby establishes the following stream management units. The boundaries of the management units are shown on the map in WAC 173-546-150.


Stream Management Unit Information

Stream Management Unit Name Control Station Gauge # Control Station by River Mile (RM); Section, Township and Range; Latitude (Lat.) and Longitude (Long.); Hydrologic Unit Code (HUC) Stream Management Reach Description
USGS Gauge #12452990 Entiat River near Entiat, WA. ("Keystone Gauge") (Lower Entiat) River Mile 1.4 From the confluence of the Entiat and Columbia rivers to the terminal glacial moraine at RM 16.2, including all tributaries except the Mad River.
Sec. 18, T.25 N., R.21 E.W.M.
Lat. 4739'48"
Long. 12014'58" NAD 27
HUC 17020010
USGS Gauge #12452800 Entiat River near Ardenvoir, WA (Upper Entiat) River Mile 18 From the terminal glacial moraine at RM 16.2, to the Entiat River headwaters, including all tributaries.
Sec. 27, T.27 N., R.19 E.W.M.
Lat. 4749'07"
Long. 12025'19" NAD 27
HUC 17020010
USGS Gauge #12452890, Mad River at Ardenvoir River Mile 0.35 From the confluence of the Mad River with the Entiat River to the Mad River headwaters, including all tributaries.
Sec.19, T.26, R.20 E.W.M.
Lat. 4744'13"
Long. 12022'03" NAD 27
HUC 17020010

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NEW SECTION
WAC 173-546-050   Establishment of instream flows.   (1) The instream flows established in this chapter are based on the recommendations of the Entiat planning unit and public input received during the rule-making process. These instream flows are established in accordance with RCW 90.82.080, and are necessary to meet the water resource management and ecosystem maintenance objectives of the Entiat watershed plan. Instream flows can serve to protect senior water rights.

(2) Instream flows established in this chapter protect stream flows from future withdrawals, and preserve flow levels that are necessary to protect wildlife, fish, water quality, scenic, aesthetic and other environmental values, navigational values, and stock watering requirements. In addition to protecting instream resources, instream flows serve to protect senior water rights.

(3) Instream flows established here are water rights. In accordance with RCW 90.82.080 (2)(a), the planning unit determined by unanimous vote that the priority date of the instream flows is the effective date of this chapter.

(4) All water rights established after the priority date of the instream flows, and not covered under the reservation, are expressly subject to these instream flows. Water rights junior to the instream flow may be exercised when flow or ground water conditions will provide enough water to satisfy senior rights, including the instream flows. Withdrawals of water which would conflict with instream flows shall be authorized only in situations where it is clear that the overriding considerations of the public interest will be served.

(5) The reservation of water established in WAC 173-546-070 will have a priority date senior to the instream flows. Full use of the reservation will not diminish the protective levels established by the instream flows in WAC 173-546-050, and is necessary to meet the water resource management and ecosystem maintenance objectives under chapters 90.82 and 90.54 RCW.

(6) Instream flows are expressed in cubic feet per second (cfs). Instream flows are measured at the control stations identified in WAC 173-546-040.

(7) Instream flows are established for the stream management units in WAC 173-546-040, as follows:


Instream Flows in the Entiat River Basin
(cubic feet per second)


Month Days USGS Gauge #12452990 USGS Gauge #12452800 USGS Gauge #12452890
Lower Entiat nr. Entiat, RM 1.4 Upper Entiat nr. Ardenvoir, RM 18 Mad River at Ardenvoir RM 0.35
January 1-31 185 175 32
February 1-29 185 175 32
March 1-15 185 175 32
16-31 250 285 68
April 1-15 250 325 100
16-30 350 375 100
May 1-15 474 375 100
16-31 720 375 100
June 1-15 898 325 100
16-30 617 325 100
July 1-15 359 275 68
16-31 268 275 68
August 1-15 185 275 68
16-31 185 275 51
September 1-30 185 175 32
October 1-31 185 175 32
November 1-30 185 175 32
December 1-31 185 175 32

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NEW SECTION
WAC 173-546-060   Lakes and ponds.   In accordance with RCW 90.54.020(3), lakes and ponds in the Entiat watershed shall be retained substantially in their natural condition, including those in the Wenatchee National Forest.

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NEW SECTION
WAC 173-546-070   Reservation of water for specific future uses.   (1) Using the watershed plan as a primary expression of public interest, and consistent with the authority under RCW 90.54.050(1) and 90.82.130(4), the department determines that there is water available, and hereby reserves an amount of surface and ground water, up to five cubic feet per second (5 cfs), for specific future beneficial uses.

(a) The priority date for uses under the reservation is the effective date of this chapter.

(b) The reservation is not subject to the instream flows established in WAC 173-546-050.

(c) Beneficial uses eligible for the reservation include domestic, stock watering, commercial agriculture, and commercial/light industrial uses, consistent with the recommendations of the planning unit and the framework established by the Entiat watershed plan. The 5 cfs of reserved water use will be monitored at the USGS Gauge No. 12452990 (Entiat near Entiat, river mile 1.4), identified in the watershed plan as the "Keystone" gauge. Allocation of water from the reservation will be made as follows.

(2) Domestic and stock watering. The department may allocate up to 1 cfs for these uses. This amount is available for appropriation anywhere within the Entiat River basin.

(a) Outdoor irrigation. The department may allocate water for up to one-half acre of lawn or noncommercial garden from the domestic and stock watering reserve.

(3) Commercial agriculture. The department may allocate up to 3 cfs for these uses. This amount is available for appropriation only in the Lower Entiat stream management unit as identified in WAC 173-546-040, generally being within the lower 16.2 river miles of the Entiat River watershed, and downstream of the area known as the "Stillwater" reach.

(4) Commercial and light industrial uses. The department may allocate up to 1 cfs for these uses. This amount is available for appropriation only in the Lower Entiat stream management unit as identified in WAC 173-546-040, generally being within the lower 16.2 river miles of the Entiat River watershed, and downstream of the area known as the "Stillwater" reach.

(5) A water right permit issued from the reserve must be consistent with the requirements of RCW 90.03.290.

(6) All water uses from the reserve must be implemented using water use efficiency and conservation practices, consistent with the watershed plan.

(7) This reservation of water shall only be put to beneficial use within the stream management units defined by this chapter. Applications for the withdrawal of water for purposes outside of the stream management units defined in this chapter shall be denied by the department.

(8) A record of all withdrawals from the reservation shall be maintained by the department. For accounting purposes, the department shall use the assumptions and estimates outlined in the plan, which include:

(a) In-house domestic uses: A per capita net use of thirty-five gallons per day.

(b) Outdoor irrigation shall be consistent with the guidelines in Tables 4-14 and 4-15 (below), and with other relevant information as it becomes available.

(c) Commercial agriculture: The consumptive amount of the beneficial use shall be consistent with the crop irrigation requirement specified in Tables 4-14 and 4-15 (below), and with other relevant information as it becomes available. The consumptive amount shall also be consistent, when appropriate, with any amount of conveyance water made unavailable to the river through irrigation bypass.


Table 4-14. Monthly tree water use1(ac-in) at WSU Tree Fruit Research Center, 1972-2002.

YEAR APR MAY JUN JUL AUG SEP OCT2 SEASON TOTAL
1972 2.03 5.18 7.47 9.20 8.03 4.43 2.00 38.34
1973 2.28 5.40 9.22 11.48 9.80 4.60 2.00 44.78
1974 1.74 4.57 8.69 9.21 8.95 5.21 2.00 40.37
1975 1.72 5.26 8.33 10.49 8.88 4.66 2.00 41.34
1976 1.84 2.82 7.86 10.04 6.71 4.84 2.00 36.11
1977 1.69 4.49 6.67 8.32 5.43 4.32 2.00 32.92
1978 1.92 5.18 8.07 10.20 8.25 4.63 2.00 40.25
1979 2.10 3.78 8.11 9.45 8.31 3.28 2.00 37.03
1980 1.66 4.52 6.25 9.72 7.06 3.61 2.00 34.82
1981 1.61 4.26 6.19 8.53 7.63 3.76 2.00 33.98
1982 1.61 4.60 7.18 8.06 6.74 3.22 2.00 33.41
1983 1.44 5.20 6.66 7.18 6.53 3.89 2.00 32.90
1984 1.47 3.92 6.42 9.86 7.89 3.26 2.00 34.82
1985 1.72 5.18 8.34 10.71 7.93 3.13 2.00 39.01
1986 1.74 4.65 7.69 8.56 7.97 4.08 2.00 36.69
1987 1.88 4.75 7.30 8.28 8.09 4.46 2.00 36.76
1988 1.56 4.22 6.38 10.06 7.57 4.16 2.00 35.95
1989 1.79 4.47 7.65 9.40 7.13 4.43 2.00 36.87
1990 1.78 3.91 6.69 9.39 6.83 4.55 2.00 35.15
1991 1.87 4.21 6.41 10.00 7.42 4.48 2.00 36.39
1992 2.08 6.34 8.58 8.75 7.65 4.22 2.00 39.62
1993 1.10 4.75 6.36 7.46 7.20 3.90 2.00 32.77
1994 1.69 4.74 8.23 12.41 8.53 4.67 2.00 42.27
1995 1.47 5.28 7.90 10.52 7.90 4.66 2.00 39.73
1996 1.53 4.34 8.54 11.02 9.58 4.65 2.00 41.66
1997 1.14 4.27 7.22 9.16 7.30 3.48 2.00 34.57
1998 1.49 3.66 7.81 9.52 8.29 4.75 2.00 37.52
1999 1.60 4.57 8.03 9.31 7.26 4.00 2.00 36.77
2000 1.65 4.38 8.02 9.85 8.56 3.66 2.00 38.12
2001 1.39 4.98 7.06 10.23 7.65 4.35 2.00 37.66
2002 1.49 4.12 7.69 9.83 7.82 3.81 2.00 36.76
MO. AVG. SINCE 1972 1.68 4.58 7.52 9.55 7.77 4.17 2.00 37.27 ac-in

1. Data have already been adjusted using pan evaporation KC value to approximate orchard tree water use.
2. The October value of 2 acre-inches was estimated based on miscellaneous October measurements provided by the WSU Tree Fruit Research Center, and conversations with Tim Smith, WSU Cooperative Extension. April through September values are based on data collected by T. Smith.
* Note: Actual irrigation rates must be 10 to 40% higher than tree use, depending on irrigation efficiency

(This table is from the watershed plan, based on the State of Washington Irrigation Guide and supplemented by Washington State Tree Fruit Research data collected in Wenatchee WA.)


Table 4-15. Average monthly tree and pasture/turf irrigation water use (ac-in) estimates.

Description of Value Apr May Jun Jul Aug Sep Oct Season (ac-in)
Average tree fruit water use by month, based on 1972-2002 WSU data. 1.68 4.58 7.52 9.55 7.77 4.17 2.00 37.27
Average tree water use by month, with 65% application efficiency. 2.58 7.05 11.57 14.69 11.95 6.42 3.08 57.34
Average Pasture/Turf water use by month (85% of WSU tree fruit water use avg. value). 1.43 3.89 6.39 8.12 6.60 3.54 1.70 31.68
Average Pasture/Turf water use by month, with 65% efficiency. 2.20 5.99 9.83 12.49 10.16 5.45 2.62 48.74


(This table is from the watershed plan, based on the State of Washington Irrigation Guide and supplemented by Washington State Tree Fruit Research data collected in Wenatchee WA.)

(d) Commercial and light industrial: The consumptive amount shall be the amount needed for the specific purpose, as determined by the department and/or the Chelan-Douglas health district.

(9) Since all uses from the reserve will have the same priority date, the following will guide water supply decisions in times of water shortage:

(a) Among the three use categories: Domestic and stock-watering uses will be met first, followed by commercial agriculture and finally commercial/light industrial.

(b) Within each use category, the date of first beneficial use will be used. The use with the earliest date will be satisfied first.

(10) The reservation is created in the context of the year 2025 planning horizon of the watershed plan. Future water supplies may also be available concurrently, using alternative water sources such as storage, reuse and conservation (WAC 173-546-100).

(11) The reservation will be evaluated by the department and the Entiat planning unit no less than every five years: 2010, 2015, and 2020. The allocated and unallocated amounts for each use will be reviewed, as well as the allocated and unallocated amounts for the entire reserve. Modifications to the program may therefore be implemented by rule, if needed.

(12) The department shall notify both Chelan County and the planning unit or its successor, in writing, when it determines that fifty percent, seventy-five percent, and one hundred percent, respectively, of the reservation is allocated. The department shall also issue a public notice in a newspaper of general circulation for the region at the same three junctures.

(13) The department shall require metering and reporting for permitted surface and ground water allocations from the reservation. If more accurate water use data is needed the department may, after consulting with the EWPU (or its successor) and Chelan County, require metering and reporting for ground water withdrawals otherwise exempted from permit requirements under RCW 90.44.050. Public water system providers will be required to meter, as consistent with the state department of health's requirements.

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NEW SECTION
WAC 173-546-080   Maximum future allocation.   (1)(a) The department determines that there are certain times when there are surface waters above the instream flows, referred to as "high flows." These high flows provide critical ecological functions such as channel and riparian zone maintenance, flushing of sediments, and fish migration. In order to protect the frequency and duration of these higher flows, the department hereby establishes maximum amounts of water/flow that can be withdrawn from specific streams at specific times above the instream flow levels.

(b) A maximum allocation shall be used to review future applications for beneficial uses from the mainstem Entiat and Mad rivers for the periods and in the amounts specified below:

(i) The maximum allocation from May 1 - June 30 is 100 cfs. Of that 100 cfs, 25 cfs may be allocated from the Mad River.

(ii) For the period of July 1-15, the maximum allocation is 67 cfs from the mainstem Entiat only.

(iii) For the period of April 16-30, the maximum allocation is 25 cfs from the Mad River only.

(iv) For the periods during which it is clear that no water is likely to be available above the instream flows, no maximum allocation amount is indicated.


Maximum Future Allocation, Entiat River Basin

Month Days Total Maximum Allocation, Mainstem Entiat (in cfs). Measured at USGS Gauge #12452990, Entiat River nr. Entiat, RM 1.4 Portion of Maximum Allocation Available From Mad River (in cfs). Measured at USGS Gauge #12452890, Mad River at Ardenvoir, RM 0.35
January 1-31
February 1-29
March 1-31
April 1-15
16-30 25
May 1-15 100 25
16-31 100 25
June 1-15 100 25
16-30 100 25
July 1-15 67
16-31
August 1-31
September 1-30
October 1-31
November 1-30
December 1-31

(2) The designation of a maximum allocation does not constitute a determination that water is available, as defined in RCW 90.03.290. A determination of water availability requires the application of four tests: Water is available; the use will not impair senior rights; water will be put to beneficial use; and the use is not detrimental to the public interest. Establishment of a water right from the allocation occurs after proper authorization from the department and after the water is first put to beneficial use. The water rights are subject to the instream flows established in WAC 173-546-050, and other provisions established in statutory, administrative and case law.

(3) The department shall require the metering and reporting of all permitted surface and ground water withdrawals from the maximum allocation.

(4) The department will maintain a record of the amount of water allocated from the Entiat and Mad Rivers. If the maximum amounts are fully appropriated, the department shall notify Chelan County and the planning unit or its successor, in writing. The department shall also issue a public notice in a newspaper of general circulation for the region.

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NEW SECTION
WAC 173-546-090   Future permitting actions.   (1) Surface and ground water permits not subject to the instream flows established in WAC 173-546-050 may be issued if:

(a) The proposed use is nonconsumptive, and compatible with the intent of this chapter.

(b) The water use qualifies for the reservation established in WAC 173-546-070.

(2)(a) Future applications for surface waters that are not part of the reserve established in WAC 173-546-070 may be approved subject to the instream flows established in WAC 173-546-050 and the maximum water allocation limits established in WAC 173-546-080.

(b) Future applications for ground waters that are not part of the reservation established in WAC 173-546-070 may be approved subject to the instream flows established in WAC 173-546-050 and the maximum water allocation limits established in WAC 173-546-080. Based upon the findings in the watershed plan, the department determines that there is hydraulic continuity between surface water and ground water sources within both the Lower and Upper Entiat River management units established in WAC 173-546-040. Therefore, water rights shall be issued for ground water only if the department determines that the withdrawal of ground water with proposed mitigation in place would not interfere with or impair the instream flows or the maximum water allocation.

(3) No right to withdraw or store the public surface or ground waters of the Entiat River basin that conflict with the provisions of this chapter will hereafter be granted, except in cases where such rights will clearly serve overriding considerations of the public interest, as stated in RCW 90.54.020 (3)(a).

(4) All future surface and ground water permit holders shall be required to install and maintain measuring devices and report the data to the department in accordance with permit requirements. In addition, the department may require the permit holder to monitor stream flows and ground water levels.

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NEW SECTION
WAC 173-546-100   Alternative sources of water.   (1) The legislature, in enacting chapter 90.82 RCW, required that strategies for increasing water supplies must be developed as part of the watershed plans. Such strategies may also be implemented through the watershed planning process. WAC 173-546-070 provides a limited reservation of water for specific new uses in the Entiat River basin. However, the ongoing need for reliable sources of new water continues. This need dictates the continued development and use of alternative sources of water, such as:

Multipurpose water storage facilities;

Conservation and efficiency measures applied to existing uses and the transfer of saved water; and

Acquisition, leasing, establishment of a trust water rights program (including water banking).

(2) Alternative sources of water of equal or better quality than the proposed source can be used to improve stream flows for fish, offset impacts of withdrawals on stream flows and provide sources of water for future out-of-stream uses.

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NEW SECTION
WAC 173-546-110   Future changes and transfers.   No changes to, or transfers of, existing surface and ground water rights in the Entiat River basin shall hereafter be granted if they conflict with the purpose of this chapter. Any change or transfer proposal can be approved only if there is a finding that existing rights, including the instream flows established in WAC 173-546-050, will not be impaired.

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NEW SECTION
WAC 173-546-120   Compliance and enforcement.   (1) To obtain compliance with this chapter the department, with assistance from Chelan County, the planning unit or its successor and partners, shall prepare and distribute technical and educational information regarding the scope and requirements of this chapter to the public. This is intended to assist the public in complying with the requirements of their water rights and applicable water laws.

(2) When the department determines that a violation has occurred, it shall first attempt to achieve voluntary compliance. An approach to achieving this is to offer information and technical assistance to the person, in writing, identifying one or more means to accomplish the person's purposes within the framework of the law.

(3) To obtain compliance and enforce this chapter, the department may impose such sanctions as appropriate under authorities vested in it, including, but not limited to, issuing regulatory orders under RCW 43.27A.190; and imposing civil penalties under RCW 43.83B.336, 90.03.400, 90.03.410, 90.03.600, 90.44.120 and 90.44.130.

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NEW SECTION
WAC 173-546-130   Appeals.   All final written decisions of the department pertaining to permits, regulatory orders, and related decisions made pursuant to this chapter can be subject to review by the pollution control hearings board in accordance with chapter 43.21B RCW.

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NEW SECTION
WAC 173-546-140   Regulation review.   Review of this chapter may be initiated by the department whenever significant new information is available, a significant change in conditions occurs, statutory changes are enacted that are determined by the department to require review of the chapter, or if modifications are necessary based on the review described in WAC 173-546-070. Chelan County, the planning unit, or other interested citizens with standing may request that the department initiate a review at any time. If the department initiates a review, it will consult with Chelan County and the planning unit or its successor. If necessary, the department will modify the appropriate provisions of this chapter by rule.

The reservation will be evaluated by the department and the Entiat planning unit no less than every five years: 2010, 2015, and 2020. The allocated and unallocated amounts for each use will be reviewed, as well as the allocated and unallocated amounts for the entire reserve. Modifications to the program may therefore be implemented by rule, if needed.

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NEW SECTION
WAC 173-546-150   Map.   For the purposes of administering this chapter, the boundaries of the Entiat River basin identified in the figure below are presumed to accurately reflect the basin hydrology.

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Washington State Code Reviser's Office