Effective Date of Rule: Thirty-one days after filing.

     Purpose: The amendment reserves twenty-five cubic feet per second of water for future uses, including residential, commercial/industrial, stock watering, and agricultural irrigation not subject to instream flows. The reservation is split between uses and is further divided by tributary subbasin. The amendment also establishes closures for certain tributaries when the reservations are fully allocated and used, and clarifies how future water right permits may be obtained. The stream flows and maximum water allocation limits established for the Skagit River basin in chapter 173-503 WAC are not altered by this amendment.

     Citation of Existing Rules Affected by this Order: Amending chapter 173-503 WAC.

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

      Adopted under notice filed as WSR 06-03-136 on January 18, 2006.

     Changes Other than Editing from Proposed to Adopted Version: Differences between the proposed and final rule: There are numerous changes from the rule amendment published with the CR-102, and this rule amendment adopted and published with the CR-103. The changes were made in response to comments as well as upon ecology's initiative. All changes made are for rule amendment clarity to more precisely identify the rule amendment or requirement. The changes made do not change the substance or the intent of the rule.

     WAC 173-503-020 Purpose, the words "as defined in WAC 173-503-040," were added after "Cultus Mt. Tributaries" as an editorial change for clarity. "Requirements as" after "stock watering" was replaced with "objectives" consistent with RCW 90.22.040.

     WAC 173-503-025 Definitions, in the definition of "commercial/industrial" water use, a sentence was added that includes irrigation of agricultural products as a purpose per the PCHB Kim decision. The sentence added is "For permit exempt commercial/industrial water ground water uses, it also means irrigation of agricultural products." In addition, "within the business property" was added for clarification of where the commercial/industrial water use will take place.

     In the definition of "domestic water use," "only" was added before potable water for clarification. The words "or business" were removed from the definition because business has already been included in the definition for commercial/industrial. The words "maintenance and vegetation" and "incidental livestock" were added to the list of examples of domestic water uses to further clarify the definition.

     The definition of "incidental stock water use" was added to allow small scale domestic stock (i.e., family horses) to be counted as domestic water use. This concept was developed so that we can allow small scale stock in tributaries while limiting larger operations to the mainstem areas only. Large stock water uses can now access a specific stock water reservation.

     The words "any applicable" were added to the definition of "maximum average consumptive daily use" in front of "return flow recharge credit" and the word "the" was removed from the same location for clarification.

     In the definition for "mitigation plan" the words "must be" were added before "approved by the department" to stress that ecology approval must be gained prior to commencing a mitigation project in accordance with this rule. The remainder of this definition was removed to allow ecology to approve scientifically sound plans as submitted by a proponent.

     The definition of "public water system" replaced "established by RCW 43.20.260" with "defined by RCW 70.119.020(8)" in order to clear up confusion regarding the intended definition of public water as written in the rule amendment. Further, "excluding" was added before "a system with four or fewer" systems [to] clarify that farms with four or fewer connection and single family residences are not considered to be public water systems.

     The definition for "retail service area" was added in keeping with the meaning of the rule amendment and in accordance with public comments seeking clarification of sections of the rule amendment in which this term appears.

     The definition for "stock water" was added in accordance with comments seeking clarification of relevant areas of the rule amendment as they pertain to current case law and the recent Attorney General Opinion.

     In the definition of "withdrawal," "appropriation or" was replaced with "extraction and" and later "or" regarding surface water diversion was replaced with "and" in order to comport with the definition for consumptive water use.

     WAC 173-503-051 Future stream closures, the title was changed to "future stream closures" from "stream closures" in order to clarify that streams will not be immediately closed if they will be closed at all.

     In subsection (1), "uses, ... other than the water reserved under WAC 173-503-073, ... from the tributary subbasin management units of ... identified as subject to closure in WAC 173-503-074. Therefore," was changed to, "existing ... uses, ... is not available for year-round consumptive appropriation in ... basin. However, in order to provide for some limited future uses," as an editorial change for clarity and readability. "These basins" was replaced with "the subbasin management units of the Skagit River identified in WAC 173-503-074" because the language was merely implicit in its meaning. "And used by permitted or exempt use ... in WAC 173-503-074" was added as an editorial change for clarity and in order to specify that the rule amendment applies to permitted and permit exempt users alike, as is specifically stated in other sections of the rule. Finally, "which will remain open to out-of-stream uses subject to instream flows. If subsequent water use information indicates that the basin can be reopened, the department shall notify the public and local governments of the change in the status of the basin as provided for below." was added for clarity on the future of the streams if or when a stream is closed.

     In subsection (2), "for the region" was replaced with "in each affected county in WRIA 3 and 4." was added to clarify that all those affected by a change in the reservation will be notified as to the status of the reservations.

     WAC 173-503-052 Future out-of-stream uses in the Upper Skagit River subbasin management units, the title was changed to "Future out-of-stream uses in the Upper Skagit River subbasin management units" in order to more clearly state the subject of the section.

     In subsection (1), "The department determines that, based on historical and current low flows and uses, there remains limited water available for year-round appropriation from certain tributary subbasins within the Water Resource Inventory Area 4, Upper Skagit basin. Therefore ... these basins that can be used under certain criteria described in WAC 173-503-073. The subbasin management units within the Upper Skagit River have been delineated" was replaced by, "In order to allow for some limited future out-of-stream uses while protecting instream resources in the Upper Skagit River subbasin management unit ... the Upper Skagit subbasin management unit and important tributaries in this subbasin management unit identified." This was done in order to make this section more succinct.

     Subsection (2), was changed from a separate subsection to a continuation of subsection (1). The words "are cumulatively" were added before "limited to a maximum average consumptive daily use." ".04 CFS or" was removed before the gpd number in keeping with WAC 173-503-074, which lists the tributary reservation amounts in gpd. "[I]n each tributary identified in Figure 5 of WAC 173-503-120. These uses must comply with the criteria described in WAC 173-503-073 and" was added before "will be debited" as editorial changes to clarify ecology's intent with regards to the limits of withdrawals in tributary areas.

     WAC 173-503-060 Future water rights, the title was changed to "Future water rights" in order to corroborate with the rule amendment that exempt and nonexempt water rights alike are covered under the rule.

     In subsection (1), "rights, including permit exempt uses under RCW 90.44.050, may be obtained" was added after "surface and ground water" in consideration of public comments, and as an editorial change to clarify the applicability of these provisions to permitted and permit exempt users alike.

     In subsection (1)(b), "173-503-075" was added after "173-503-074" to reflect the change in which a separate reservation was created for stock watering. "In an application for ... a reservation is approved, the department shall deduct its permitted amount from" was removed and "The department shall deduct the" was added as an editorial change for succinctness and clarity. Further, "as described in WAC 173-503-073" was added as an editorial change for specificity. "173-503-075" was added to the end of this subsection for the above reason.

     In subsection (1)(c), "applicant" was changed to "proponent" and "to the department's satisfaction" was added after "demonstrate to" and "adversely impact instream resources," was added before "or diminish water quality" in accordance with several comments made, which felt that the standards listed that a mitigation plan must meet were set too low or left too vague. The sentence "The source of water for a mitigation plan shall not be from a legally closed source." since ecology retains approval authority for the mitigation plans and it will make a determination on the legal availability of the source water when it reviews the proposed mitigation plan.

     In subsection (1)(d), "or withdraw water from a legally closed basin" was added after "will not impair senior water rights" to clarify what was only implied in the rule. "A ground water permit" was replaced by "a ground water right" in keeping with the intent of the rule amendment to include both permit and permit exempt water uses. "Sufficiently" was added in the sentence allowing for changes in rule amendment application in the event of new scientific information to give clarity as to the standard by which the scientific information will be judged. A final sentence was added to the rule amendment stating "and will account for uses under the reservations in WAC 173-503-073, 173-503-074 and 173-503-075 in accordance with these findings" in order to explicate which parts of the rule amendment will be applied differently in light of new scientific information, which was merely implied in the rule amendment proposal.

     Two editorial changes were made in subsection (2) to be consistent with other areas of the rule. In the first one, "public water supply" was changed to "public water system" in order to be consistent with WAC 173-503-073, the definitions section and the purpose of the rule. The words "municipal or" were removed before both references to "public water system" because municipal water systems are a subset of public water systems and thus covered by this term. Additionally "that can provide timely and reasonable water service as defined in WAC 173-503-025" was added to be consistent with public water connection requirements in WAC 173-503-073.

     In subsection (3), "permits" was changed to "appropriations" to be consistent with the fact that permitted and permit exempt users alike will be subject to the reservations. "If the water source is located in a closed subbasin, a water right can only be obtained under conditions in subsection (1)(a),(c) or (d) of this section" was added to clarify the water rights of water users located within the various tributaries and streams and is consistent with the rule amendment.

     In subsection (4), the word "right" was replaced by "appropriation" as an editorial change and for clarification. The statement "serve overriding considerations of the public interest" was replaced by "meet the standards set forth by RCW 90.54.020," on the request of commenters.

     In subsection (5), the words "permit holders" were removed and "appropriations" was put in their place as an editorial change and for clarification. Further, the language "in accordance with specifications provided by the department, and report the data to the department in accordance with the permit requirements. In addition, the department may require the permit holder to monitor stream flows and ground water levels" was removed. The language was replaced by "measured through installation and maintenance of appropriate measuring device(s) (water source meters), except for permit exempt uses serving a single residence. Water users required to measure water use must provide a reasonable right of inspection, allow access for the meter to be read, and report the data to the department or a local entity the department designates. The department may require additional users to measure water use, if the department determines that water supplies warrant further monitoring." and an editorial change to clarify metering requirements, as several commenters showed confusion as to what would be expected of them. Ecology has retained the authority to require single residence permit exempt users to meter in the future, and believes that the data from metering of group B water systems will provide ecology with an idea of actual water usage on single residence water uses.

     WAC 173-503-061 Baker River project settlement agreement flows, the language "will provide a significant benefit to salmonids and instream resources. Therefore, the department will as part of its public interest review of new water right applications ensure that no reduction in the mitigation benefits associated with the flow release provisions of the hydropower license for the Baker project will result from approval of such applications; however, this provision shall not apply to new water right applications or permit exempt water rights under RCW 90.44.050 that are processed and approved" was removed. The language was replaced by "are a necessary component to adequately mitigate for the ongoing impacts of Baker River project operations. Therefore, in order to prevent detriment to the public interest, new permits for withdrawals or diversions that would impact the portion of the Skagit River Basin between Sedro Woolley up to and including the Baker River, will only be issued if the applicant can demonstrate that there will be no measurable reduction in the mitigation benefits associated with the flow release provisions associated with the Baker River relicense. However, this provision shall not apply to new appropriations that are obtained" and "173-503-074, and 173-503-075" was added to the end as an editorial change to clarify the department's intent based on public comments received and in accordance with the removal of "stock water" from WAC 173-503-073 reservations.

     WAC 173-503-073 Water reservations, in subsection (1) a new sentence was added stating, "The department reserves its authority to review an application for new water use under the reservation in light of new information that may reflect upon or alter its current findings of availability, beneficial use, impairment, and/or public interest." This sentence was added as an editorial change to clarify ecology's permitting authority. This sentence does not change or expand ecology's authority.

     In subsection (1)(a), the words "10 cubic feet per second (cfs)" before "is available for agricultural irrigation purposes" was removed. This clarifies the amount of water reserved under agricultural irrigation reservation as 3,564 acre feet annually (equivalent to 10 cfs diverted continuously through the irrigation season) and ecology would not be limiting all withdrawals under this reservation to an instantaneous withdrawal rate of 10 cfs. Similarly, "of water" was added after "3,564 acre feet" as an editorial change for clarification.

     In subsection (1)(b), "stock watering" was removed from the section which still covers the "domestic, municipal, and commercial/industrial" reservation. The stock watering reservation has been moved to WAC 173-503-075 in response to several public comments to make stock watering a separate reservation, and does not raise the overall reservation values. "Fifteen cubic feet per second (15 cfs) or 10,840 acre-feet annually" was also removed and replaced with "a maximum average consumptive daily use of 9,370,208 gallons per day" to account for the removal of stock watering from the domestic, municipal, and commercial/industrial reservation, and the change in the reservation number is reflected in the stock watering reservation in WAC 173-503-075. Similarly, the new language clarifies that the reservation will be accounted for using the maximum average consumptive daily use (withdrawal amount minus any applicable septic recharge). The change from cubic feet per second and acre-feet annually to gallons per day is for clarification and because more people understand the concept of gallons per day.

     In subsection (2)(a), "a source in" was removed before "the Lower, Middle or Upper Skagit" as an editorial change for clarification.

     In subsection (2)(c), "The department will condition uses under the reservation to minimize the instantaneous impact of withdrawals on instream flows. Such conditions may include requiring efficient conveyance and irrigation methods or irrigation scheduling" was added at the end of the subsection to clarify ecology's permitting requirement.

     In subsection (2)(e), "water user must install and maintain a water" was added before "a measuring device" and replaced "must be installed and maintained on the water source" as an editorial change for clarification. "The user or other designated local entity must" was added before "report the data to the department" for clarification of the reporting requirement, which was requested by several commenters.

     In subsection (2)(g), the words "has been relinquished" have been added after "has been abandoned" to give agricultural irrigators the ability to add the unused portion of their water right to the reservation prior to when abandonment conditions have been met. In keeping with this change, "upon notification of abandonment" has been changed to "once the department is notified of the discontinuation."

     In subsections (3) and (3)(a), "stock watering" was removed as a purpose of use. Ecology is proposing to allow incidental stock water use (small scale livestock operations) as part of domestic water use. A small quantity of domestic reservation (0.5 cfs/340,000 gpd) will be set aside for a separate stock water reservation.

     In subsection (3)(b), "based on the subbasin management units established in" was replaced with "and used consistent with" for clarity and succinctness. In the next sentence, "and" was removed and replaced with "Such use of the reservation," which is the start of a new sentence, and the update was an editing change for clarity. A new sentence was added, stating "For water sources located in identified tributaries in the Upper Skagit subbasin management unit in Figure 5 of WAC 173-503-120, water withdrawals must meet the restrictions described in WAC 173-503-052." This sentence does not change or add a requirement, but clarifies that the requirements in this section are consistent with other sections of the rule. The words, "the following conditions are met" were added after "if" as an editorial change for clarity. The conditions "or the applicant demonstrates to the department that surface water is the only physically available source of water that can be obtained in the tributary subbasin; (2) the appropriation complies with the conditions of the reservation, and (3) the appropriation" were added as an editorial change for clarity and do not change the requirements created by the rule. "Use of the source" was removed before the new language "(3) the appropriation" was added for clarity. Finally, "For sources located in identified tributaries in the Upper Skagit subbasin management unit in Figure 5 of WAC 173-503-120, water use is limited to only ground water sources, and is limited to a maximum daily use of 0.4 cfs or 25,851 gallons per day, debited from the total Upper Skagit subbasin management unit reservation." was removed because it would be redundant in meaning to the language added in this subsection and detailed above.

     In subsection (3)(c), "Domestic" was removed before the word "water" to clarify that subsection (3) does not only pertain to domestic water uses, but also municipal and commercial/industrial water uses.

     In subsection (3)(d), "of this reservation, except for permit exempt appropriations serving a single residence," was added and "including permit exempt users, under the reservation" was removed, effectively removing single residence exempt well users from the metering requirement in order that ecology can focus on enforcement of metering compliance of larger water users and single residence exempt wells will be deducted from the reservation at 350 gpd or 175 if they on [are] served by a septic system. "The water user" was replaced by "Water users required to measure their water use" was replaced in keeping with the above change. "The department may require additional users to measure their water use, if the department determines that water supplies require further monitoring" was added as a final sentence to allow for ecology to require single residence exempt well users to meter their wells if there is reason to believe that the gallons per day use exceeds or is less than 350 gpd.

     In subsection (3)(f), "for a potable water supply" was added after "a new withdrawal" for clarity and consistency with other sections of the rule amendment and in response to several comments from nonpotable water users stating confusion over whether they would be required to seek public water system connection. "Municipal" water system was replaced with "public" water system in two locations because municipal water systems are a subset of public water systems. "Obtain a letter from a" was replaced with "present written evidence to the department that water service cannot be provided in a timely and reasonable manner by a" in keeping with several commenters who stated that public water suppliers do not often deny potential water connections through a letter and in keeping with standard practices of Skagit County. Similarly, "was denied. Such a denial" was replaced with "cannot be provided in this manner. This determination" in keeping with comments stating that a public water connection is not always denied as such, and the language was updated in keeping with the rule's intent.

     In subsection (3)(g), "users" was replaced by "appropriations under this reservation" as an editorial change for clarification.

     Subsection (3)(h) was added, stating "All users of this reservation, including permit exempt users, must inform ecology, at the time of the appropriation of water, the type of wastewater disposal system for the property or properties that the appropriation serves. If the initial wastewater disposal system is a septic system, and the property or properties subsequently connect(s) to a sewer system, the users of the appropriation must report to ecology the change in the wastewater disposal system in a timely manner." This provision allows ecology to request information to assist us in administering the rule, specifically applicability of septic recharge credit.

     In subsection (4), "or a subsequent owner" was added before "seeking water" to emphasize that following the conditions of the reservation is the responsibility of subsequent owners in addition to the user which established the appropriation. This does not change or add a requirement and is consistent with the law of prior appropriation.

     In subsection (5), "identified as subject to closure in WAC 173-503-074" was added after "subbasin management units" as an editorial change for clarity. "New water sources" was replaced by "Upon closure, new appropriations" as an editorial change for clarity. A final sentence was added to the first paragraph of this subsection stating "If subsequent water use information indicates that the basin can be reopened, the department shall notify the public and local governments of the change in the status of the basin as described below." for clarity and in response to several comments requesting information on how the public will be notified when basins are closed or if or when they could be reopened.

     In subsection (6), "a water use authorized from the reservations" was changed to "an appropriation from a reservation" as an editorial change and in keeping with the rest of the rule, which includes permit exempt wells.

     In subsection (7)(a), the words "stock watering" were removed in keeping with subsection (1) in which the reservation for stock watering was removed.

     In subsection (7)(b), the words "regardless of whether the use is an interruptible or uninterruptible water right" was removed because the previous phrase "All uses of this reservation shall be debited against the reservation" gives ecology the authority to account for the water use under the reservation based upon the type of proposed use. The word "source" was changed to "use" in the first sentence as an editorial change for clarification. In the next sentence "or a standard amount" was added after "actual measured data" in order to make this section consistent with other sections of the rule. "Account for water use using 800" was replaced with "deduct the authorized quantities under water right permits or certificates from the reservation. For permit exempt appropriations, the department will initially deduct a standard amount of 350" to comport with several comments challenging the 800 gallons per day amount as far exceeding that which is actually used by residents of the Skagit River basin. "Municipal" was changed to "residential service" for clarity. "Or" after "connection" was replaced with "in a group domestic water system. The standard amount will be adjusted periodically to reflect the maximum average daily use before any recharge credit. The department will deduct" to clarify ecology's reservation accounting. In the same sentence, "a" was replaced with "each" and "until" was changed to "unless" as editorial changes and for clarity as to ecology's intent. "Availability certificates issued by the counties" was changed to "approvals issued by local jurisdictions" after it came to ecology's attention that not all counties in the Skagit River basin issue availability certificates.

     In subsection (7)(c), "individual and community" was added in response to several comments requesting clarification on the sort of septic systems covered under the recharge credit. "On-site" was removed before "septic system credit" as an editorial change, and "of the reservation" was added to the same sentence as an editorial change and for clarity. After "converted to sewer systems" "whose discharge is located outside the basin of origin" was added because sewer systems with a discharge within the basin or origin would add to the basin similarly to septic systems. New language was added to the end of the subsection stating, "If water users are subsequently converted to sewer from septic systems, total water uses under the reservation in the applicable subbasin shall remain below the maximum average consumptive daily use limits in the newly sewered basin. Actions to remain in compliance with maximum average consumptive daily use limits could include: Reducing the number of withdrawals under the appropriate subbasin reservation, reducing actual water use, providing an equal quantity of imported water to the subbasin as has been provided through septic recharge return flow allowance, implementing an ecology approved mitigation plan, or by connecting to water sources from outside of the subbasin." This language was added to present water users subject to the reservation with options for continuing to use only a portion of the reservation after a sewer connection and does not add a new requirement.

     In subsection (7)(d), "or relinquishes" was added to provide water users an alternative to abandoning a water right in order to add water to the reservation and allows the water right to vest more immediately. "/or debited from the reservation, upon demonstration to the department that the well or surface water source has been decommissioned through written certification." was added to replace "debited from the reservation, upon demonstration to the department that the well or surface water source has been decommissioned through written notification of the abandonment." as an editorial change for clarification that the writing does not have to be in the form of a certification.

     WAC 173-503-074 Establishment of subbasin management units and reservation quantities by subbasin management unit, a sentence was added stating, "Appropriations established after April 14, 2001, will be debited from the reserved quantities in accordance with the provisions contained in WAC 173-503-060 and 173-503-073." This sentence was added as an editorial change for clarification and does not add or change a requirement under the rule. The column in the chart showing the maximum average consumptive daily use in cubic feet per second was removed because it was redundant in its content to the column showing the maximum average consumptive daily use in gallons per day. Carpenter and Fisher Creek basins were combined based on further hydrological review.

     WAC 173-503-075 Future stock watering, language was added stating: "Consistent with RCW 90.22.240, the department retains sufficient minimum flows or levels in streams, lakes or other public waters to provide adequate waters in such water sources to satisfy stock watering requirements for stock on riparian grazing lands. Future permit exempt stock water uses and future stock water uses requiring a water right can be obtained as outlined below.

     (1) A reservation of 324,000 gallons per day of water is reserved for new stock water uses not subject to instream flows. It is available to users exempt from the permitting process and to users requiring a water right. Users of this reservation would be limited to a source within the Lower, Middle and Upper Skagit subbasins and must use the source only for stock watering purposes. Future permit exempt stock water users would not have to measure and report their water use, although the department encourages water withdrawal measuring. The department would measure and account for permit exempt stock water appropriations using stock inventory reports or actual measuring data, if such data exist. New stock water sources using surface water can be authorized under this reservation if authorized under an approved water right from the department. Measurement requirements for these appropriations would be outlined in the water right permit." A separate reservation for stock watering was created because of the difficulty of accounting for stock watering usage. The reservations were not raised or lowered due to this change. The language was also added to clarify that permit exempt stock water users will not have to measure water use, ecology will account for their use using stock inventory reports.

     WAC 173-503-116 Incorporating new hydrologic investigations and information in rule, the word "scientific" was added before "findings" to clarify that ecology would only update its accounting of the reservations given scientific findings, which is also consistent with WAC 173-503-060. A sentence was added stating, "will account for uses under the reservations in WAC 173-503-073, 173-503-074 and 173-503-075 in accordance with these findings. If necessary, the department will" to clarify that the section applies only to the accounting of the reservations. Finally, "this rule in the bulletin" was replaced with "maps described in WAC 173-503-120" to clarify the process for updating the maps.

     WAC 173-503-120 Maps, the words "and will be updated as information becomes available as provided under WAC 173-503-116" to comport with the change to WAC 173-503-116. The maps in figures 4 and 5 were updated to reflect the combining of Fisher and Carpenter Creeks in WAC 173-503-074 and to make the maps more readable.

     WAC 173-503-150 Water rights subject to instream flows predating the reservations, the words, "including permit exempt commercial/industrial irrigation users," were added to conform to the rest of the rule amendment which treats permit and permit exempt uses alike. [The language] "household water use for the Skagit River basin for domestic water uses" was removed and replaced with "of 350 gpd," as an editorial change for clarity. "Water use records are available" was replaced by "the department determines that other information demonstrate an alternative water use quantity should be deducted. Mitigation credits, including but not limited to, the recharge credit described in WAC 173-503-073(7), apply to these water uses, if appropriate." This change was made for clarity and to comport with WAC 173-503-060 and 173-503-073 allowing water users of the reservation recharge credit for septic systems and to mitigate reservation withdrawal with approved mitigation plans.

     A final cost-benefit analysis is available by contacting Cathy Carruthers, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6564, fax (360) 407-6989, e-mail caca461@ecy.wa.gov.

     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 16, Amended 5, Repealed 1.

     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 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: May 15, 2006.

Jay J. Manning

Director

OTS-7748.11

AMENDATORY SECTION(Amending Order 99-05, filed 3/14/01, effective 4/14/01)

WAC 173-503-010   General provision.   These rules apply to waters within the Lower and Upper Skagit water resources inventory area (WRIA 3 and 4), as defined in WAC 173-500-040, excluding the Samish River subbasin, and any islands surrounded by saltwater including Fidalgo, Guemes, Cypress, Hope and Goat islands. This chapter is promulgated pursuant to chapter 90.54 RCW (Water Resources Act of 1971), chapter 90.22 RCW (Minimum water flows and levels), and chapter 173-500 WAC (Water resources management program).

[Statutory Authority: Chapters 90.54 and 90.22 RCW, and chapter 173-500 WAC. 01-07-027 (Order 99-05), § 173-503-010, filed 3/14/01, effective 4/14/01.]

     Chapter 90.54 RCW (Water Resources Act of 1971) requires that utilization and management of waters of the state be guided by a number of fundamentals, including:

     Uses of water for domestic, stock watering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, and thermal power production purposes, and preservation of environmental and aesthetic values, and all other uses compatible with the enjoyment of the public waters of the state, are declared to be beneficial. (RCW 90.54.020(1))

     The quality of the natural environment shall be protected and, where possible, enhanced, as follows:

     Perennial rivers and streams of the state shall be retained with base flows necessary to provide for the protection and preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served. (RCW 90.54.020 (3)(a))

     Waters of the state shall be of high quality. Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry. Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials and substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served. (RCW 90.54.020 (3)(b))

     ((In administering and enforcing this regulation, the department's actions shall be consistent with the provisions of chapter 90.54 RCW.)) In furtherance of these statutory objectives, this chapter creates a reservation of a limited amount of water for specific future uses. It establishes closures for tributaries, and sets forth conditions for future water right permitting.

[Statutory Authority: Chapters 90.54 and 90.22 RCW, and chapter 173-500 WAC. 01-07-027 (Order 99-05), § 173-503-020, filed 3/14/01, effective 4/14/01.]

     "Agricultural irrigation" means the application of water to crops grown for commercial agricultural purposes.

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

     "Appropriation" means the process of legally acquiring the right to use specific amounts of water for beneficial uses, as consistent with the ground and surface water codes and other applicable water resource statutes. This term refers to both surface and ground water right permits and to ground water withdrawals otherwise exempted from permit requirements under RCW 90.44.050.

     "Commercial/industrial use" means use of water for the purpose of business activities, including human domestic needs within the business property, manufacturing or production activities and maintenance of vegetated areas on the business property. For permit exempt commercial/industrial water ground water uses, it also means irrigation of agricultural products.

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

     "Department" means the Washington state department of ecology.

     "Domestic water use" means, for the purposes of administering WAC 173-503-073 and 173-503-074 only, potable water to satisfy the human domestic needs of a household, including water used for drinking, bathing, sanitary purposes, cooking, laundering, maintenance of vegetation, care of household pets and incidental livestock, and other incidental uses. For permit-exempt domestic water use of ground water sources, total outdoor watering for multiple residences shall be consistent with the ground water permit exemption provisions in RCW 90.44.050.

     "Incidental stock water use" means, for the purposes of administering WAC 173-503-073 and 173-503-074 only, sufficient water to care for small scale domestic livestock operations.

     "Instream flow" means a stream flow level set in rule that is needed to protect and preserve fish, wildlife, scenic, aesthetic, recreational, water quality, and other environmental values, and navigational values. The term "instream flow" means a base flow under chapter 90.54 RCW, a minimum flow under chapter 90.03 or 90.22 RCW, or a minimum instream flow under chapter 90.82 RCW.

     "Maximum average consumptive daily use" means the use of water measured over the highest period of use divided by the number of days in that period, less any applicable return flow recharge credit.

     "Mitigation plan" means a scientifically sound plan voluntarily submitted by a proponent to offset the impacts of a proposed water use and must be approved by the department.

     "Municipal water supplier" means an entity that supplies water for municipal water supply purposes. (RCW 90.03.015)

     "Municipal water supply purposes" means a beneficial use of water as defined in RCW 90.03.015, including:

     (a) For residential purposes through fifteen or more residential service connections or for providing residential use of water for a nonresidential population that is, on average, at least twenty-five people for at least sixty days a year;

     (b) For governmental or governmental proprietary purposes by a city, town, public utility district, county, sewer district, or water district; or

     (c) Indirectly for the purposes in (a) or (b) of this subsection through the delivery of treated or raw water to a public water system for such use.

     "Nonconsumptive use" means a type of water use where either there is no diversion from a source body, or where there is no diminishment of the source.

     "Permit-exempt withdrawals" or "permit exemption" means a ground water withdrawal exempted from permit requirements under RCW 90.44.050, but which is otherwise subject to the ground water code.

     "Public water system" means any system defined in RCW 70.119.020(8) which provides water for human consumption through pipes or other constructed conveyances, excluding a system serving only one single-family residence and excluding a system with four or fewer connections all of which serve residences on the same farm. This term includes group domestic systems.

     "Reservation" means an allocation of water for future beneficial uses. The priority date of a given allocation from the reservation is the same as the effective date of rulemaking that established the reservation.

     "Retail service area" means the area where a municipal water supplier currently provides direct water service and has documented plans to provide new water service.

     "Scientifically sound" means adhering to the requirements of best available science as defined in WAC 365-195-905 (5)(a) and (b).

     "Stream management unit" means a stream segment, reach, or tributary used to describe the part of the relevant stream to which a particular instream flow level applies. Most of these units contain a control station.

     "Stock water" means drinking water supply for the raising of livestock animals and associated uses of water related to care of stock animals.

     "Subbasin management unit" means a stream segment, reach, or tributary basin, used to describe where a particular instream flow level, water reservation budget, or water diversion or withdrawal limit applies.

     "Timely and reasonable manner" means the way in which potable water service can be provided by a public water system to a property as defined in local coordinated water system plans, or by public water systems, or by local legislative authorities.

     "Withdrawal" means the extraction and use of ground water, or the diversion and use of surface water.

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     (2) The department will notify the public of effective subbasin closures and reopening of subbasins through publication of a notice in a newspaper of general circulation in each affected county in WRIA 3 and 4.

     (3) Exceptions to the closures and instream flow requirements are provided in WAC 173-503-060, 173-503-073, 173-503-074 and 173-503-075.

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     All appropriations in each Upper Skagit tributary subbasin identified in Figure 5 of WAC 173-503-120 are to be from ground water sources only and are cumulatively limited to a maximum average consumptive daily use of 25,851 gallons per day in each tributary basin identified in Figure 5 of WAC 173-503-120. These uses must comply with the criteria described in WAC 173-503-073 and will be debited against the Upper Skagit subbasin reservation quantity.

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     (6) Any authorization for new beneficial uses must require development on a timeline that shows reasonable progress and due diligence.

[Statutory Authority: Chapters 90.54 and 90.22 RCW, and chapter 173-500 WAC. 01-07-027 (Order 99-05), § 173-503-060, filed 3/14/01, effective 4/14/01.]

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     Based on this finding, the department hereby reserves specific quantities of an amount of surface and ground water, which can be allocated for specific future beneficial uses. These reservations of water are not subject to the instream flows established in WAC 173-503-040 or closures established in WAC 173-503-051. Uses of the water under the reservation are available only if all the conditions set forth in this section are fully complied with. The department reserves its authority to review an application for new water use under the reservation in light of new information that may reflect upon or alter its current findings of availability, beneficial use, impairment, and/or public interest.

     (a) Agricultural irrigation reservation. A reservation of 3,564 acre-feet of water annually, is available for agricultural irrigation purposes not subject to the instream flows.

     (b) Domestic, municipal, and commercial/industrial water supply reservation. A reservation of a maximum average consumptive daily use of 9,370,208 gallons per day of water is available for domestic, municipal, or commercial/industrial water supply not subject to the instream flows.

     (2) Conditions for use of the reserved agricultural irrigation water are as follows:

     (a) The reservation is available for both ground and surface water and is only available from the Lower, Middle or Upper Skagit River subbasin management units.

     (b) The reservation shall be only for the purpose of agricultural irrigation, as defined in WAC 173-503-025.

     (c) A water right for use from the reservation must be obtained from the department. The department will condition uses under the reservation to minimize the instantaneous impact of withdrawals on instream flows. Such conditions may include requiring efficient conveyance and irrigation methods or irrigation scheduling.

     (d) Water use will be authorized for only the irrigation season, unless the applicant can demonstrate to the department's satisfaction a need for a continuous, year-round, irrigation demand.

     (e) A water user must install and maintain a water measuring device (water source meters) in accordance with specifications provided by the department. The user or other designated local entity must report the data to the department in accordance with the permit requirements.

     (f) The department will maintain an estimate of the amount of water used from the reservation based on water rights issued by the department and actual measured water use.

     (g) Agricultural irrigation water rights obtained under this reservation are limited to irrigation purposes only. The purpose of use of a water right obtained under the agricultural irrigation reservation cannot be changed. In the event that the water use authorized under a water right from the reservation is no longer desired, has been abandoned, or has been relinquished, the department will credit the quantity of water previously used back to the reservation for that purpose, once the department is notified of the discontinuation.

     (3) Conditions for use of the reserved domestic, municipal, and commercial/industrial water reservation are as follows:

     (a) The reservation shall be only for the purpose of domestic, municipal, or commercial/industrial water use as defined in WAC 173-503-025. It is available to users exempt from the permitting process and to users requiring a water right, as outlined in WAC 173-503-060.

     (b) This reserve of water shall be allocated and used consistent with WAC 173-503-074. The water source must be a ground water well if the source is located in a subbasin management unit tributary to the Skagit River. Such use of the reservation is subject to availability of water in the reservation and the conditions of use of the reservation. For water sources located in identified tributaries in the Upper Skagit subbasin management unit in Figure 5 of WAC 173-503-120, water withdrawals must meet the restrictions described in WAC 173-503-052. A surface water source can be used only if the following conditions are met:

     (i) The source is located in the Upper, Middle or Lower Skagit subbasin management units, or the applicant demonstrates to the department that surface water is the only physically available source of water that can be obtained in the tributary subbasin;

     (ii) The appropriation complies with the conditions of the reservation; and

     (iii) The appropriation is approved by the department through a water right permit.

     (c) Water use shall meet the water use efficiency standards of the uniform plumbing code as well as any applicable local or state requirements for conservation standards.

     (d) All users of this reservation, except for permit exempt appropriations serving a single residence, shall install and maintain a measuring device (water source meter), in accordance with specifications provided by the department. Water users required to measure their water use must provide a reasonable right of inspection, allow the meter to be read, and report the data to the department or a designated local entity. The department may require additional users to measure their water use, if the department determines that water supplies require further monitoring.

     (e) This reservation shall be administered and accounted for by the department and local governmental authorities.

     (f) A new withdrawal for potable water supply under this reservation is not allowed in areas where a public water system has been established and a connection can be provided in a timely and reasonable manner. If an applicant for a building permit or subdivision approval cannot obtain water through a public water system, the applicant must present written evidence to the department that water service cannot be provided in a timely and reasonable manner by a public water supplier prior to drilling a well. This determination shall be consistent with the criteria listed in RCW 43.20.260.

     (g) For appropriations under this reservation utilizing a permit-exempt ground water source, water use shall be consistent with the provisions in RCW 90.44.050.

     (h) All users of this reservation, including permit exempt users, which would like to obtain the septic recharge credit must state, at the time of the appropriation of water, the type of wastewater disposal system for the property or properties that the appropriation serves. If the initial wastewater disposal system is a septic system, and the property or properties subsequently connect(s) to a sewer system, the users of the appropriation must report to the department the change in the wastewater disposal system in a timely manner.

     (4) It shall be the responsibility of an applicant for a building permit or subdivision approval seeking water, or a subsequent owner using water under the reservation to comply with the conditions in WAC 173-503-073(3) and all other conditions of this chapter.

     (5) The reservations are a one-time, finite resource. Once the reservations are fully allocated, they are no longer available and the subbasin management units identified as subject to closure in WAC 173-503-074 are closed, except for the Upper, Middle and Lower Skagit subbasin management units. Upon closure, new appropriations, including permit exempt wells, may be available only under the provisions in WAC 173-503-060, 173-503-081, 173-503-100 and 173-503-110. If subsequent water use information indicates that the basin can be reopened, the department shall notify the public and local governments of the change in the status of the basin as described below.

     The department shall notify the appropriate county, in writing, when it determines that fifty percent, seventy-five percent, and one hundred percent of the reservation for each subbasin management unit has been allocated. The department shall also issue a public notice annually in a newspaper of general circulation for the region that shows the amount of reserved water for each subbasin management unit that has been allocated, remains unallocated, any subbasin management units that have been fully allocated and from which water is no longer available under these reservations, and any subbasin management units that are reopened.

     (6) If an appropriation from a reservation is not in compliance with any condition of these reservations, the department may take action consistent with WAC 173-503-090.

     (7)(a) A record of all withdrawals from the domestic, municipal, and commercial/industrial reservation shall be maintained by the department. The record will readily show both the allocated and unallocated quantities of water that are in reserved status.

     (b) All uses of this reservation shall be debited against the reservation. The department will account for water use under the reservation based on actual measured water use or a standard quantity. If actual measuring data are not available, the department will deduct the authorized quantities under water right permits or certificates from the reservation. For permit exempt appropriations, the department will deduct a standard amount of 350 gallons per day for each domestic or residential service connection in a group domestic water system. The standard amount will be adjusted periodically based on reported water use to reflect the maximum average daily use before any recharge credit for those users that are required to measure and report water use. The department will deduct 5,000 gallons per day for each commercial/industrial use, unless actual measured use is available. Additionally, the department reserves the right to account for water use based on the best available information contained in well logs, water approvals issued by local jurisdictions, water rights issued by the department, public water system approvals or other documents.

     (c) For water users using individual and community on-site septic systems, fifty percent of the water used will be credited to the reservations for recharge from on-site septic systems provided that the water user's point of withdrawal is not located in the service area of a sewer provider's adopted general sewer plan as defined in WAC 173-240-050(3). The septic system credit will be removed for water users of the reservation that are subsequently converted to sewer systems whose discharge is located outside of the basin of origin. If water users are subsequently converted to sewer from septic systems, total water uses under the reservation in the applicable subbasin shall remain below the maximum average consumptive daily use limits in the applicable subbasin. Actions to remain in compliance with maximum average consumptive daily use limits could include: Reducing the number of withdrawals under the appropriate subbasin reservation, reducing actual water use, providing an equal quantity of imported water to the subbasin as has been provided through septic recharge return flow allowance, implementing a department approved mitigation plan, or by connecting to water sources from outside of the subbasin.

     (d) If a water user under the reservation subsequently abandons or relinquishes the withdrawal, the department will credit back to the reservation the actual amount of water used and/or debited from the reservation, upon demonstration to the department that the well or surface water source has been decommissioned through written certification.

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Table 1

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     A reservation of 324,000 gallons per day of water is reserved for new stock water uses not subject to instream flows. It is available to users exempt from the permitting process and to users requiring a water right. Users of this reservation would be limited to a source within the Lower, Middle and Upper Skagit subbasins and must use the source only for stock watering purposes. Future permit exempt stock water users would not have to measure and report their water use, although the department encourages water withdrawal measuring. The department would measure and account for permit exempt stock water appropriations using stock inventory reports or actual measuring data, if such data exist. New stock water sources using surface water can be authorized under this reservation if authorized under an approved water right from the department. Measurement requirements for these appropriations would be outlined in the water right permit.

     (2) Chapter 173-503 WAC shall be implemented consistent with RCW 90.22.040 and the department's policy that encourages direct stock water uses from streams to remove livestock from streams for the purpose of protecting water quality and stream habitat. This applies to both existing and new stock water rights.

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     (b) If education and technical assistance do not achieve compliance, the department shall issue a notice of violation, a formal administrative order under RCW 43.27A.190, or assess penalties under RCW 43.83B.336, 90.03.400, 90.03.410, 90.03.600, 90.44.120 and 90.44.130.

[Statutory Authority: Chapters 90.54 and 90.22 RCW, and chapter 173-500 WAC. 01-07-027 (Order 99-05), § 173-503-090, filed 3/14/01, effective 4/14/01.]

     • Establishment of a trust water rights program.

[Statutory Authority: Chapters 90.54 and 90.22 RCW, and chapter 173-500 WAC. 01-07-027 (Order 99-05), § 173-503-100, filed 3/14/01, effective 4/14/01.]

     (2) The determination of how much water should be allocated between future out-of-stream uses and the restoration and enhancement of instream flows will be made at the time the water is acquired and deposited into the trust water rights program.

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     The following section of the Washington Administrative Code is repealed:

WAC 173-503-080

Policy statement for future permitting actions.

© Washington State Code Reviser's Office