WSR 05-18-044

PREPROPOSAL STATEMENT OF INQUIRY

DEPARTMENT OF ECOLOGY


[ Order 05-15 -- Filed September 1, 2005, 3:49 p.m. ]

Subject of Possible Rule Making: Amendment of chapter 173-503 WAC, Instream resources protection program -- Lower and Upper Skagit water resources inventory area (WRIA 3 and 4). The proposed rule amendment will set aside water for certain future uses and close impaired streams.

Statutes Authorizing the Agency to Adopt Rules on this Subject: Chapter 90.54 RCW, Water Resources Act of 1971; chapter 90.22 RCW, Minimum water flows and levels; RCW 43.27A.090 Water resources; and chapter 173-500 WAC, Water resources management program.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: Minimum instream flows established in chapter 173-503 WAC create a water right with a priority date as of the date the rule was established (April 14, 2001). Those flows are senior to any new water rights, including exempt withdrawals, which were established after the rule. After adoption of the rule, the rule was appealed and the litigation parties are attempting a settlement agreement that will include a rule amendment. The proposed rule amendment will close impaired streams and create a new administrative framework to allow limited water uses to be used without interruption from the senior instream flow right. The settlement discussions may impact the terms of the draft rule amendment submitted to the public for review and comment in the future.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: Ecology has exclusive statutory authority under chapter 90.22 RCW to establish minimum instream water flows. Consultation will occur with the Washington Department of Fish and Wildlife.

Process for Developing New Rule: During the rule development settlement discussions, consultations will be held with the litigation parties and other key stakeholders including tribes, counties, cities, and water utilities. A press release and focus sheet will be written and distributed to mailing lists and e-mail lists. Public hearings will be held to solicit comments from other interested parties.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Jacqueline Klug, Department of Ecology, Northwest Regional Office, 3190 160th Avenue S.E., Bellevue, WA 98008, phone (425) 649-7124, e-mail jklu461@ecy.wa.gov, fax (425) 649-7098.

August 31, 2005

Ken Slattery

Water Resources

Program Manager

Washington State Code Reviser's Office