WSR 07-04-114

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 04-08 -- Filed February 7, 2007, 10:31 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-08-061.

Title of Rule and Other Identifying Information: Amendment to chapter 173-532 WAC, Water resources program for the Walla Walla Basin, Water Resources Inventory Area (WRIA) 32.

Hearing Location(s): Dayton High School Auditorium, 614 South 3rd Street, Dayton, on March 14, 2007, at 7:00 p.m.; and at the Department of Transportation Conference Room, 1210 G Street, Walla Walla, on March 15, 2007, at 7:00 p.m.

Date of Intended Adoption: April 18, 2007.

Submit Written Comments to: Department of Ecology water resources web page at http://www.ecy.wa.gov/programs/wr/instream-flows/wallawallabasin.html, or to Travis Burns, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-7207, e-mail tbur461@ecy.wa.gov, fax (360) 407-6574, by March 23, 2007.

Assistance for Persons with Disabilities: Contact Judy Beitel by March 7, 2007, TTY (800) 833-6388 or (360) 407-6878.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule amends the 1977 rule, chapter 173-532 WAC, Water resources program for the Walla Walla Basin, WRIA 32. In 2005 and consistent with the Watershed Planning Act, chapter 90.82 RCW, the Walla Walla watershed planning unit recommended ecology amends the existing rule to include instream flow levels, modify existing stream closures, and allow use of high flows for water storage projects that improve stream flows for salmon production. Other amendments include closure of the gravel aquifer and limitation on future permit-exempt groundwater use.

Reasons Supporting Proposal: The adoption of these rule amendments is needed to protect instream values within the Walla Walla Basin and to avoid injury of existing water rights from future appropriations of water.

Statutory Authority for Adoption: Chapter 90.82 RCW, Watershed Planning Act; chapter 90.54 RCW, Water Resources Act of 1971; chapter 90.22 RCW, Minimum Water Flows and Levels Act; chapter 90.03 RCW, Water code; and chapter 90.44 RCW, Regulation of public ground waters.

Statute Being Implemented: Chapters 90.22, 90.44, 90.54 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: Hedia Adelsman, (360) 407-6222 or Travis Burns, (360) 407-7207, Headquarters, Department of Ecology; Implementation and Enforcement: Keith Stoffel, Eastern Regional Office, Department of Ecology, (509) 329-3464.

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 is amending chapter 173-532 WAC, Water resources program for the Walla Walla River Basin, WRIA 32. The key amendments include:

Establishing instream flow water rights.
Modifying seasonal surface water closures.
Closing the gravel aquifers, which are directly connected to surface water sources.
Limiting future withdrawals during high flow periods to projects resulting in net environmental benefits.
Managing future permit-exempt groundwater withdrawals from the gravel aquifer, in "high density" areas by:
- Limiting the total amount of water for domestic uses and irrigation of lawn and garden to 1,250 gallons per day for one residence and 5,000 gpd for multiple residences in one development.
- Requiring water for water mitigation for outdoor watering.
- Metering permit-exempt uses.
- Limiting stock watering.
The primary impact to business is the protection of businesses' existing water rights.

This small business economic impact statement (SBEIS) finds there are disproportionate impacts from the rule amendment. The dominant business cost impacts are the capital costs for new or expanding businesses associated with (1) accessing a permit-exempt well in the deep basalt aquifer, or (2) acquiring an existing water right. Cost minimizing features have been provided where it is legal and feasible to do so.

Ecology welcomes comments and data related to this SBEIS or this rule-making process.

1. Background: The Walla Walla Basin poses unique water management challenges. The basin as a whole covers portions of both Oregon and Washington. This rule applies to the Washington portion of the basin. The basin is overappropriated. That is, more water has been legally allocated, through existing water rights, than is naturally available.

Most of the summer flows in the Walla Walla have been diverted for irrigation. For the past hundred years, parts of the Walla Walla River have run dry in summer, seriously impacting salmon and other fish. In addition, during dry years, irrigators divert most of the low flows in late spring and early fall, threatening salmon in and out [of] migration in the Walla Walla and the Touchet rivers. The water supply is also unreliable for water users. Many adjudicated water right holders with senior rights (some as early as the 1890s) are unable to use their rights from July to October.

In 1977, ecology adopted the water resources program rule for the Walla Walla River basin, chapter 173-532 WAC, seasonally closing most streams and rivers because of unavailability of water and limiting future groundwater withdrawals. Ecology has issued no new surface water rights under the existing rule1, except for uses that are nonconsumptive or those limited to the nonclosure periods.

The existing rule protects surface water rights from new appropriations of groundwater. The current section WAC 173-532-050 states in part: "New appropriators of ground water will be required to locate wells outside of the zone of hydraulic continuity between surface water and the ground water aquifer." Ecology evaluates applications for groundwater appropriation using the four legal tests set in chapter 90.03 RCW. One of the critical tests is a determination, by ecology, that the proposed appropriation will not impair existing water rights (both surface water and groundwater).

In the early 1990s, ecology developed methods to determine whether certain aquifers are connected to surface waters by assessing basin hydrology and historical water withdrawals. In the Walla Walla Basin, ecology determined that the gravel aquifers are connected to surface waters in the basin. Therefore, the continual use of the groundwater from those aquifers will impair existing surface water rights.

Since 1996, to protect existing water rights, ecology has issued no new surface water or groundwater rights in the basin. However, no restrictions have been imposed on permit-exempt groundwater withdrawals from the gravel and basalt aquifers.

By 1999, bull trout and steelhead were listed as threatened species under the federal Endangered Species Act (ESA). In 2000, local agencies and the community created a planning unit and initiated the development of a watershed plan. The plan was to address the needs of the basin, including stream flow protection and restoration. The planning unit completed the watershed plan in May 2005, and Walla Walla and Columbia counties adopted the plan in June 2005.

For over twenty-five years (since the adoption of the rule in 1977), the basin has had limited growth. This has changed in the last five to seven years. The population and economic growth in Walla Walla County has significantly increased, especially in the urban growth areas and rural residential areas.

Planning unit members spent considerable time discussing the issue of permit-exempt groundwater withdrawals. While the planning unit did not make recommendations on the issue, members were concerned about the increase in permit-exempt wells-especially in areas where flows are very limited. Water right holders, the local community and ecology share these concerns about the potential cumulative impacts of permit-exempt wells on stream flows and existing water rights.

The basin has achieved some success in improving flows for ESA-listed species. Three irrigation districts have a negotiated settlement agreement with the United States Fish and Wildlife service to keep portions of their respective water rights in the river for fish. In addition, significant investment (over $5 million) has been committed to restoring flows and increasing water reliability for users. A large number of permit-exempt groundwater withdrawals from the gravel aquifers could undermine these flow protection efforts. Some members of the community are also concerned about the equity issue where existing users must often stop their diversions and no new surface water rights are issued, but permit-exempt groundwater use from sources connected to those surface sources remains unregulated.

The planning unit made recommendations to ecology for the protection of instream flows and existing water rights, and the proper management of future water allocations. The watershed planning unit recommended ecology amend the existing rule to include: Instream flow levels, modification of existing stream closures, and the use of winter and spring high flows for water storage projects that improve stream flows for salmon production. Unresolved issues, such as future permit-exempt groundwater use, needed further discussion and negotiation. The proposed amendments to chapter 173-532 WAC are the result of a year-long negotiation between ecology and the planning unit.

1.1 Requirements of a Small Business Impact Analysis: Ecology is issuing this SBEIS under chapter 19.85 RCW as part of this rule adoption process. The objective of this SBEIS is to identify and evaluate the various requirements and costs that the proposal might impose on businesses. In particular, the SBEIS examines whether the rule amendment imposes a disproportionate impact on small businesses as compared to large businesses. The purpose and content of an SBEIS are contained in RCW 19.85.040.

1.2 Baseline: An SBEIS is limited to analyzing the changes the rule amendment creates, given the existing legal setting. The current legal structure is defined by the 1977 Walla Walla River Basin rule and other applicable administrative rules and laws. Therefore, this analysis evaluates the economic impact on small businesses from changes to how water would be managed through the proposed rule amendment.

2. Brief Description of the Rule Amendment and How Changes Affect Business: The proposed amendments to chapter 173-532 WAC2 include:

Establishing instream flow water rights, with the priority date being the effective date of this rule amendment.
Modifying the existing seasonal surface waters closures.
Closing the gravel aquifer, except for future permit-exempt withdrawals and nonconsumptive uses.
Limiting future withdrawals during nonclosure periods, and at specific locations, to projects that would provide net environmental benefits with particular emphasis on salmon production.
Limiting stock watering.
Managing other future permit-exempt well withdrawals from the gravel aquifer in "high density" areas by:
- Limiting the total amount of water for domestic uses and irrigation of lawn and garden to 1,250 gallons per day for one residence and 5,000 gpd for multiple residences.
- Requiring water-for-water mitigation for outdoor use.
- Metering many permit-exempt uses.
The rule changes that could have effects on small business are the closure of the gravel aquifers and the limits on future exempt well withdrawals. Small businesses with existing water rights will benefit greatly from these changes. The limits on exempt well use, within high density areas, could adversely impact new small businesses or existing businesses looking to expand their water use.

2.1. Establishing Instream Flows: There is no impact to small businesses from establishing instream flows.

The setting of instream flows does not affect existing water rights. Instream flows will only affect new consumptive uses. With the closure of all surface sources from May 1 or June 1 to November 30, only uses allowed during the nonclosure periods will have instream flow conditions. Those uses are limited to storage projects designed to benefit the environment, particularly salmon populations.

The current regulatory framework does not allow new surface water rights. Under chapter 90.03 RCW proposed surface water applications would not meet the statutory tests - water supply would not be adequate and reliable for the intended purpose; future use may impair existing water rights; and it may not be in the public interest. Therefore, setting instream flows will not have an effect on small businesses.

Once established, instream flows are water rights and protected under existing regulations from impairment by all future changes and transfers of senior or junior water rights. Existing businesses proposing to change or transfer their water rights are subject to this provision. However, because of the overappropriated condition of the basin and the need to not impair any water right, their situation remains unchanged.

Businesses that provide guide services such as rafting, fishing, and bird watching, or those dependent on dilution for waste removal, would not see any changes. Setting instream flows does not put water back into the streams and rivers.

2.2. Modifying Surface Closures and Closing the Gravel Aquifer: There may be some impact to small businesses relying on exempt wells. Otherwise, there is no impact from the surface water or gravel aquifer closures.

The amendment will modify the surface water closures in the basin. Streams and rivers will be closed to new consumptive uses from either May 1 to November 30, or June 1 to November 30. Overall, the closure will be one to two months longer than what it is under the current rule.

With the existing regulatory framework, set by statutes and the 1977 rule, ecology issues no new surface water rights for any purpose, except for storage projects. Water rights for storage projects for irrigation and commercial uses have not been issued because the water supply is unreliable. (Usable flows occur only once in ten years.) The only storage projects permitted are those that improve instream flows. Therefore, the modification of the surface waters closures will not have an effect on small businesses.

Under the proposed amendment the gravel aquifers, connected to surface waters in the basin, will be closed year-round. Under the existing regulatory framework set by statutes and the 1977 rule, ecology has not issued new groundwater rights from the gravel aquifer since 1996. Therefore, the closure of the gravel aquifer will not have an effect on small businesses that would require water right permits. However, the closure of the gravel aquifer may affect future new small businesses that could currently use the groundwater permit-exemption to meet their water supply needs.

The rule amendment provides exceptions for future nonconsumptive uses (i.e., geothermal heat pump) and permit-exempt groundwater withdrawals. Section c. below, discusses how the exception applies to small businesses and how the conditions set are likely to impact them.

2.3. Exceptions for Future Permit-Exempt Groundwater Withdrawals: The exception does not help small businesses located in high density areas (areas with zoned density equal to or more dense than one residence per ten acres), except for builders/owners. Builders/owners can access the exception under new conditions-the amount of water for domestic use and irrigation of lawn and garden cannot exceed 1,250 gallons per day, water use must be metered and reported and outdoor use must be mitigated water-for-water before any water is put to use.

Currently, businesses that require a reliable water supply have the following options:

- Have an existing water right.
- Connect to a municipal water supply system, if available.
- Drill a well under the groundwater exemption.
- Obtain a water right through purchase or transfer of an existing valid water right.
These amendments will not affect businesses with existing water rights. These businesses may actually benefit from a more protected and reliable water supply.

As stated above, the proposed rule closes the gravel aquifer and provides an exception to the closure under certain strict conditions.

a) Hook-ups: There is no change in areas with timely water hook-ups to a municipal water supplier.

The city of Walla Walla requires hook-up to the public water system if the system is located within three hundred feet of the structure property line. Also any land division in the urban growth area which results in parcels less than five acres must connect to the city water supply. The city of College Place has similar hook-up requirements currently in place. The requirement to hook-up to a municipal water supply has no effect in these areas. Therefore, this requirement imposes no additional cost on small business.

The rule does not require the hook-up to a municipal water supplier unless the hook-up can be provided in a timely and reasonable manner. Where small business is not required but chooses to connect to a municipal supplier, additional costs from the connection or the delay cannot be attributed to the rule amendment. If a small business cannot access public water supply it will either need to drill in the basalt aquifer or purchase and transfer an existing water right.

b) High density areas: In areas with zoned density equal to or denser than one residence per ten acres (referred to as high density areas)3 the exception is limited to residences for domestic use and irrigation of lawn and garden (this outdoor use must be fully mitigated). The exception is not available to small businesses. In those areas, new small businesses will need to use one of these options:

- Connect to a public water supply, if available.
- Drill and withdraw water from the deep basalt aquifer.
- Obtain a water right through purchase or transfer of an existing valid water right.
County and city zoning ordinances, within the WRIA, generally prohibit business activities outside commercially zoned areas. With some small exceptions, commercially zoned areas fall within the city limits of Walla Walla and College Place. The municipal water service area currently covers the city limits and most of the urban growth areas. Additionally, the water suppliers plan to provide service to the entire urban growth area within the next twenty years.

c) Low density areas: In areas where the zoned density is less than one residence per ten acres, the use of permit-exempt groundwater by small businesses is unchanged from the current regulatory framework. Therefore, there are no additional costs incurred from this amended rule to any future businesses, in low density areas, wishing to use an exempt well.

3. Affected Industries: Ecology developed a list of permitted businesses in the high density areas based on data provided by the Washington state employment security department, the Walla Walla County zoning codes4, and others. New business development is likely to be similar.

Table 1. List of Potential Small Businesses in High Density Areas


County zoning in high density areas North American Industry Classification System5
Storage/packing agricultural produce Code 1151
Horticulture nurseries Code 1114
Produce stands Code 1113
Commercial greenhouses Code 1114
Hatcheries Code 1129
Rock crushers Code 21
Bed and breakfasts Code 7211
Residential building construction Code 2361
Nonresidential building construction Code 2362

Produce stands: This type of business generally does not require water. Therefore, the rule amendment does not affect them.

Storage/packing agricultural produce: While these types of business do not require water for storage or packing, there may be a need to have water for employees and for fire protection. The effects of the rule are limited to those uses.

Hatcheries: Water use in hatcheries is nonconsumptive. Future hatcheries, therefore, qualify under the exemption for nonconsumptive water uses. Hatcheries may, however, require water for their employees.

Bed and breakfast: Businesses are usually remodeled homes or transformed existing structures. As long as the existing structure has a valid water right (permitted or permit-exempt) and the water use does not exceed the amount previously put to beneficial use, the future business will not be affected by the rule amendment. However, construction of a new structure for this type of business in a high density area may be affected, unless a municipal water supply is available.

Horticulture nurseries, commercial greenhouses, and rock crushers: Those proposed in the future will not be allowed to use the exception for permit-exempt groundwater from the gravel aquifer, if located in high density areas.

Residential and nonresidential building construction: Construction businesses are impacted only if they are builders/owners - meaning they own the land, build homes, and sell them, as distinguished from those who build for a homeowner or a business. Builders/owners are allowed to use the permit-exemption from the gravel aquifer under some restrictions. The amount of water is limited to 1,250 gallons per day, a water meter must be installed, and mitigation for outdoor use must be obtained prior to irrigating lawn or garden.

Those businesses that need water can:

- Connect to a public water supply, if available.
- Drill and withdraw water from the deep basalt aquifer.
- Obtain a water right through purchase or transfer of an existing valid water right.
4. Calculation of Business Benefits and Compliance Costs:

Costs: Costs of the different options listed below generally include costs for: Reporting and recordkeeping, professional services, equipment, supplies, labor, and any increased administrative costs.

Currently, small businesses are able to drill a well in the gravel aquifer. The average cost of drilling is $35 per foot.6 The gravel aquifer depth varies. Recently drilled wells had a depth of one hundred to three hundred feet7, with an average of two hundred feet.

Average total costs for a gravel well is $10,000, with $7,000 for drilling (200 feet x $35), and $3,000 for the pump and other associated costs (e.g., electrical, connection to the home).

a). Cost of drilling a basalt well: The cost of drilling a well in the basalt aquifer is higher than drilling a well in the gravel aquifer. The depth to the basalt aquifer in the high density areas averages six hundred feet (based on ecology's well logs and a USGS study). According to well drillers in the basin, the average cost of drilling in the basalt in high density areas is about $50 a foot.

The average total cost of a new well in the basalt is about $40,000, with $30,000 for the drilling ($50 x 600 feet) and $10,000 for a pump and other equipment8. Additional costs to businesses would be $30,000 (calculated by subtracting the cost of a gravel well from the cost of a basalt well-or $40,000 less $10,000).

b). Cost of purchasing existing water rights: Businesses can purchase water rights in the high density areas so that they may drill a well accessing the gravel aquifer. The maximum allowed quantity, under the groundwater permit-exemption, is 5,000 gallons a day, which totals 1,825,000 gallons or 5.6 acre feet per year9.

Based on WestWater Research (a consultant specializing in water valuation and marketing) and ecology's valuation from past sales, water rights can be permanently purchased for $600 to $1000 an acre foot.10 On average, the total cost of purchasing 5.6 acre-feet could be $5,000 ($800 x 5.6 acre-feet coming to $4,480 and adding about $520 for recording fees and professional services).

If the water right needs to be transferred, the water transfer processing cost will have to be included. This ranges from $50 to $50011. These costs are added to the purchase cost. The total cost for purchasing and transferring a water right is about $5,500.

A health requirement prohibits the use of surface water for domestic purposes unless it is extensively treated. Therefore, most, if not all, purchased surface water rights will have to be transferred to a groundwater right and the business will have to drill a well for domestic use. Purchasing and transferring a water right, and drilling a well would have an average total cost of $15,500. So the additional cost to businesses will be $5,500 ($15,500 less the cost of a gravel aquifer well).

5. Calculation of Disproportionate Impacts: In this SBEIS, employment security's database for NAICS codes was used to find out the number of industries and number of employees per business that may be impacted by the amended rule - horticulture nurseries, commercial greenhouses, rock crushers, bed and breakfasts, residential and commercial construction. There were ninety-four small businesses in the potentially affected industries in the WRIA. For small businesses in these industries, the average number of employees is 3.4. For the top 10% of potentially affected businesses the average number of employees is 12.1.

Ecology estimates the highest cost to businesses would be the additional cost of drilling a basalt well, which is $30,000. The lowest cost is the cost of purchasing and transferring water rights, which is $5,500.

Using the highest and lowest cost figures, the cost per employee for small businesses, and for the top 10% of the large businesses, was calculated.

The lowest cost per employee for small business is $1,618, and the smallest cost per employee for the top 10% [of] large businesses is $455, see Table 2.

The highest cost per employee for small business is $8,824, and for the top 10% of large businesses is $2,480, see Table 2.



Table 2. Proportional Costs to Businesses


Average # of Employees Cost Per Employee
Options Estimated Additional Costs Small Business 10% Largest Small Business 10% Largest
Lowest (water right) $5,500 3.4 12.1 $1,618 $455
Highest (Basalt well) $30,000 3.4 12.1 $8,824 $2,480

These high and low costs per employee demonstrate that the proposed rule amendments have a disproportionate impact on small business. The primary impact of this amended rule is to protect existing water rights held by businesses in the basin.

6. Cost-Reducing Features: Ecology has reduced costs imposed on small businesses to the extent required by chapter 19.85 RCW. Ecology considered many methods to reduce costs:

Reducing, modifying, or eliminating substantive regulatory requirements: Eliminating substantive requirements is not legally acceptable. Current law requires ecology to protect existing water rights. Protection of those rights provides a benefit to businesses that own existing water rights. The amended rule reduces and limits the impacts to small businesses located in low-density areas and in areas were [where] the gravel aquifer does not exist and the basalt aquifer is the source of supply (i.e., Columbia County and a large portion of Walla Walla County). In addition, the amended rule exempts the Burbank area (groundwater in the area drains toward the Snake and Columbia rivers) from the restriction on small businesses in high density areas.

Simplifying, reducing, or eliminating record-keeping and reporting requirements: Businesses in low density areas are not required to meter and report their water use. Ecology is responsible for keeping a record of all future permit-exempt groundwater withdrawals from the gravel and the basalt aquifers. The agency will use the best available information on water use per sector, including metering information, where it is available. For those required to meter and report their water use this requirement was limited to the critical months in the basin - May 1 to November 30.

Reducing the frequency of inspections: The rule does not impose any additional requirements for inspections.

Delaying compliance timetables: Since 1977, no efforts have been made to control permit-exempt groundwater withdrawals. Recent population growth and development threaten existing water rights and efforts to restore stream flows for ESA listed species. Protection of existing water rights is a mandatory requirement that cannot be ignored or postponed. Protection of those rights provides a benefit to businesses that own existing water rights.

Reducing or modifying fine schedules for noncompliance: The amended rule does not impose any penalties that are not already in statutes.

Other mitigation techniques: Ecology will be working with the local community to assist future water users mitigate the impacts of their proposed uses.

7. Small Business Involvement in Developing the Amended Rule: Small business representatives were involved throughout the development of this rule. Ecology worked closely with the Walla Walla watershed planning unit and its water quantity/instream flow subcommittee to draft the rule revisions. The local planning unit comprises a wide cross-section of the Walla Walla Basin population, including small businesses. Representatives from sellers of produce, small real estate companies, professional partnerships, farm operators, and other small business were members of the planning unit and were involved at every stage of rule development. Ecology held public workshops in November 2006. Local chambers of commerce, drillers, developers, real estate companies and others received notice of the workshops and many small business owners participated.

8. Conclusions: The cost impacts of the amended rule are disproportionate for small businesses. Therefore, ecology has provided cost-minimizing features where it is legal and feasible to do so. The primary impact to business is the protection of existing businesses' water rights.

This rule amendment would affect very few businesses. Those affected meaning they are unable to access water via the conventional method - a permit-exempt well drilled in the gravel aquifer due to the closure of that aquifer, may experience additional costs associated with drilling and operating a basalt well, or purchasing and transferring an existing water right.

1 There are one hundred nineteen applications for new water rights currently pending in WRIA 32. See Appendix 1.

2 Appendix 2 contains a summary of the proposed changes to chapter 173-532 WAC.

3 Appendix 3 shows a map of the high density areas within WRIA 32.

4 LexisNexis Walla Walla County, Title 17 Zoning, Chapter 17.16 Permitted Uses.

5 Ecology has used NAICS codes rather than standard industrial codes (SIC). It is a comparable system being used at the federal and state level and has replaced SIC codes in common use.

6 Based on a survey of well drillers and homeowners in the basin.

7 Ecology well logs.

8 Survey of costs from drillers in the Walla Walla area.

9 1 acre foot= 325,851 gallons, the amount of water required to cover one acre with water one foot deep.

10 Shown in Appendix 4.

11 $50 ecology's application fee. $500 Walla Walla conservancy board processing fee (includes all costs associated with a water transfer).

Due to size limitations relating to the filing of documents with the code reviser, the small business economic impact statement 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.

A copy of the statement may be obtained by contacting the department of ecology water resources web page at http://www.ecy.wa.gov/programs/wr/instream-flows/wallawallabasin.html, or by contacting Travis Burns, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7207, fax (360) 407-6574, e-mail tbur461@ecy.wa.gov.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting the department of ecology water resources web page at http://www.ecy.wa.gov/programs/wr/instream-flows/wallawallabasin.html, or by contacting Travis Burns, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7207, fax (360) 407-6574, e-mail tbur461@ecy.wa.gov.

February 6, 2007

Polly Zehm

Deputy Director

OTS-9509.2


AMENDATORY SECTION(Amending Order DE 77-30, filed 12/14/77)

WAC 173-532-010   Authority and purpose.   (1) This ((regulation)) chapter is adopted in accordance with 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), Regulation of public ground waters (chapter 90.44 RCW), Water code (chapter 90.03 RCW), and the water resources management regulation, chapter 173-500 WAC, which was ((promulgated)) adopted under the authority of the Water Resources Act of 1971, chapter 90.54 RCW.

(2) This chapter((, including any amendments,)) applies to the management of all waters ((that lie)) within ((or contribute to)) the Walla Walla River drainage basin located in Washington state.

((This chapter sets forth the department's policies to manage the basin's water resources.)) (3) This chapter shall not affect existing water rights, unless otherwise provided for in the conditions of the water right in question. It shall also not affect federal Indian and non-Indian reserved rights.

(4) The department shall initiate a review of this chapter whenever new information, changing conditions, or statutory modifications make it necessary to consider revisions.

[Order DE 77-30, 173-532-010, filed 12/14/77.]


AMENDATORY SECTION(Amending Order DE 77-30, filed 12/14/77)

WAC 173-532-020   Definitions.   For purposes of this chapter, the following definitions shall be used.

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

(2) (("Base flow" means a level of stream flow established in accordance with provisions of chapter 90.54 RCW required in perennial streams to preserve wildlife, fish, scenic, aesthetic, and other environmental and navigational values.)) "Appropriation" means the process of legally acquiring the right to specific amounts of the public water resource for application to beneficial uses.

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

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

(5) "Director" means the director of the department of ecology.

(6) "Domestic use" means 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 and garden per dwelling,)) and other incidental household uses. Irrigation of lawn and garden under the permit exemption in RCW 90.44.050 shall not exceed one-half acre.

(7) (("In-house domestic use" means use of water for drinking, cleaning, sanitation, and other uses in a residence, excluding irrigation of lawn and garden.)) "Environmental enhancement project" means a water storage project, above or below ground, that would provide net environmental benefits, with particular emphasis on enhancing salmonids production. Projects that enhance instream flows directly or indirectly qualify under the definition. Projects proposed as mitigation for new consumptive water rights do not qualify under this definition.

(8) "Gravel aquifer" means any geologic formation generally under unconfined, or water table, conditions which consist of sand and gravel and may contain interbedded layers of silt and clay.

(9) "Instream flow" means a level of stream flow, established under chapters 90.54, 90.03, 90.22, and 90.82 RCW, required in perennial streams to preserve wildlife, fish, scenic, aesthetic, and other environmental and navigational values. The term means "base flow" under chapter 90.54 RCW, a "minimum flow" under chapters 90.03 and 90.22 RCW, and "minimum instream flow" under chapter 90.82 RCW. In the Walla Walla Watershed Plan, adopted in June 2005 by Walla Walla and Columbia counties, the term "new appropriation flows" has the same meaning as instream flows under this chapter.

(10) "Municipal water ((supply system)) supplier" ((means a set of facilities including source, treatment, storage, transmission and distribution facilities whereby water is furnished for commercial and/or industrial uses, and public water supplies with 10 or more connections)) and "municipal water supply purposes" are defined in RCW 90.03.015.

(((9))) (11) "Nonconsumptive use" means a type of water use where either there is no diversion or withdrawal from a source ((body)), or where there is no ((discernible)) diminishment of the source.

(((10))) (12) "Perennial stream" means a stream ((with a natural flow which is normally continuous at any given location)) that normally flows year-round.

(((11) "Public water supply" means any water supply intended or used for human consumption and community uses.

(12))) (13) "Planning unit" means the Walla Walla watershed planning unit, established under chapter 90.82 RCW, and all successors, formally designated by the Walla Walla watershed planning initiating governments. The initiating governments are Columbia and Walla Walla counties, city of Walla Walla, and Gardena Farms Irrigation District No. 13.

(14) "Water right" means a right to make beneficial use of public waters of the state, including any water right established for instream flow purposes.

(((13) "Zone of direct hydraulic continuity" means that zone of inter action between the surface water stream and the adjacent ground water whereby a pumping well can effectively reduce the flow in the stream to the detriment of surface water users, as determined by the department.)) (15) "Withdrawal" means the extraction or use of ground water, or the diversion or use of surface water.

[Order DE 77-30, 173-532-020, filed 12/14/77.]


NEW SECTION
WAC 173-532-025   Establishment of stream management units.   The department hereby establishes the following stream management units (Table I). The boundaries of the management units are shown in WAC 173-532-120.


Table I
Stream Management Unit Information

Stream Management Unit Name; Management Point (MP) No.; Control Station Gage No. Control Station by River Mile (RM); Section; Township and Range; Latitude (Lat.) and Longitude (Long.) Stream Management Reach Description
Mill Creek MP 1 (Mill Creek at Kooskooskie) USGS Gage No. 14013000 RM 21.2;

Section 12;

T6N, R37E;

4600.0'N,

11807.1'W

Mill Creek at confluence with Walla Walla River (Walla Walla River, RM 33) to state line headwaters at Mill Creek, including tributaries.
Walla Walla River MP 5a (Walla Walla River at Detour Road) Department Gage No. 32A100 RM 32.4;

Section 31;

T7N, R35E;

462.6'N,

11829.4'W

Walla Walla River, RM 32.4 (below confluence of Walla Walla River and Mill Creek) to state line at Walla Walla, including tributaries.
North Fork Touchet River MP 6a (North Fork Touchet above Dayton) Department Gage No. 32E050 RM 54.9;

Section 32;

T10N, R39E;

4617.9'N, 11757.2'W

Mouth of North Fork Touchet River to headwaters, including tributaries.
Touchet River

MP 11 (Touchet River at Bolles)

Department Gage No. 32B100

RM 40.1;

Section 7;

T9N, R37E;

4616.4'N, 11813.3'W

Touchet River, RM 40.1 to RM 54.9 (confluence of North Fork Touchet River and South Fork Touchet River), including tributaries, excluding North Fork Touchet River and its tributaries.

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AMENDATORY SECTION(Amending Order DE 77-30, filed 12/14/77)

WAC 173-532-030   ((Base)) Establishment of instream flows.   ((The establishment of base flows for surface streams will be deferred until such time as storage project or projects become a reality. At present, all surface streams are totally appropriated during the irrigation season and water is not available for protection of instream values. With the advent of future storage projects, the department may establish base flows which can be included as project benefits and maintained by storage releases.)) (1) The instream flows established in this chapter are based on the recommendations of the planning unit; consultation with the departments of fish and wildlife, agriculture, and community, trade, and economic development; the Confederated Tribes of the Umatilla Indian Reservation; and public input received during the rule-making process.

(2) Instream flows established here are water rights, which protect stream flows from future consumptive appropriations. 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.

(3) Instream flows are to be protected from impairment by junior water rights and by all future changes and transfers of senior and junior water rights.

(4) Instream flows, expressed in cubic feet per second (cfs), are measured at the management points identified in WAC 173-532-025. For reaches that do not have management points, the flows established for the nearest management point or points (where a tributary with a management point contributes to such flow) apply to those reaches.

(5) Instream flows are established for the stream management units in WAC 173-532-025, as indicated in Table II.


Table II
Instream Flows in the Walla Walla River Basin
(cubic feet per second)

Stream Management Unit

Month

Mill Creek

MP 1 (Mill Creek at Kooskooskie),USGS Gage No. 14013000

Walla Walla River

MP 5a (Walla Walla River at Detour Road), Department Gage No. 32A100

North Fork Touchet River,

MP 6a (North Fork Touchet above Dayton), Department Gage No. 32E050

Touchet River

MP 11 (Touchet River at Bolles), Department Gage No. 32B100

January 110 250 95 150
February 125 250 95 150
March 150 350 125 200
April 150 350 125 200
May 125 250 125 Closure 200 Closure
June 100 Closure Closure 95 Closure 125 Closure
July 53 Closure Closure 65 Closure 74 Closure
August 41 Closure Closure 53 Closure 48 Closure
September 41 Closure Closure 51 Closure 56 Closure
October 48 Closure Closure 63 Closure 82 Closure
November 100 Closure Closure 95 Closure 150 Closure
December 110 250 95 150

[Order DE 77-30, 173-532-030, filed 12/14/77.]


AMENDATORY SECTION(Amending Order DE 77-30, filed 12/14/77)

WAC 173-532-040   ((Streams)) Surface and ground water closed to further consumptive appropriations.   ((The department has determined that no waters are available for consumptive appropriation through the establishment of water rights for the following streams for the periods indicated:

((TABLE II-1
SURFACE WATER CLOSURES*


STREAM

NAME

AFFECTED

REACH

EFFECTIVE

DATE OF

CLOSURE

PERIOD OF

CLOSURE

Blue Creek Mouth to Headwaters Date of Adoption June 1 - Oct. 31

Mill Creek

Mouth to

State Line


2-6-1957

May 1 - Oct. 1

Walla Walla

River


Mouth to

State Line


Date of Adoption

May 1 - Nov. 30

Dry Creek

Mouth to Headwaters

Date of Adoption

April 15 - Nov. 15 or whenever Walla Walla at USGS Gage 14.0185 drops below 91.0 cfs.

Touchet

River


Mouth to Headwaters

Date of Adoption

June 1 - Oct. 31

Coppei

Creek


Mouth to Headwaters

Date of Adoption

April 1 - Nov. 10

Doan Creek

Mouth to Headwaters

Date of Adoption

June 1 - Oct. 1

Mud Creek

Mouth to Headwaters

Date of Adoption

May 1 - Oct. 31

or whenever Walla Walla below confluence with Mud Creek falls below 50 cfs.


Pine Creek

Mouth to Headwaters

Date of Adoption

May 1 - Oct. 31

or whenever Walla Walla River at confluence with Pine Creek or below Touchet River drops below 50 cfs.


Stone Creek

Mouth to Headwaters

Date of Adoption

May 1 - Oct. 31
*Exception for single-domestic and stock water where no other practical source is available.))

(1) Based on historical and current low flows and water withdrawals by existing water right holders, the department has determined that no waters are available for new consumptive uses during periods of low surface water flows. Therefore, all rivers and streams in the basin are seasonally closed to any further consumptive appropriation from May 1 to November 30 with the exception that the Walla Walla River and all of its tributaries between Stateline and Detour Road at MP 5a, and Mill Creek and all of its tributaries from the confluence with the Walla Walla to the headwaters shall be closed from June 1 to November 30.

(2) Based on the hydrogeology of the basin, the department finds that gravel aquifers in the basin are hydraulically connected to surface waters in the basin. Therefore, the gravel aquifers are closed. Exception to this closure is provided for future permit-exempt ground water withdrawals as prescribed in WAC 173-532-050 and for nonconsumptive ground water use as prescribed in WAC 173-532-045. The closure does not affect the construction of a replacement well or new additional well or wells consistent with the conditions set in RCW 90.44.100 (2) and (3).

(3) Future permits to withdraw surface water during nonclosure periods, shall be limited to environmental enhancement projects as described in WAC 173-532-055.

[Order DE 77-30, 173-532-040, filed 12/14/77.]


NEW SECTION
WAC 173-532-045   Future permitting actions.   Surface and ground water permits may be issued if either condition in subsection (1), (2), or (3) of this section applies.

(1) The proposed water use is nonconsumptive.

(2) The proposed ground water use from the basalt aquifer will not:

(a) Impair existing water rights;

(b) Affect any closed surface source where instream flows have not been established; or

(c) Affect any closed gravel aquifer.

(3) The proposed surface water use would occur during nonclosure periods and is intended for an environmental enhancement project, as defined in WAC 173-532-020(6) and meeting the criteria listed in WAC 173-532-055.

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AMENDATORY SECTION(Amending Order DE 77-30, filed 12/14/77)

WAC 173-532-050   Protection of surface water rights from ((new appropriators of ground water)) future permit-exempt ground water appropriations from the gravel aquifer.   ((New appropriators of ground water will be required to locate wells outside of the zone of direct hydraulic continuity between the surface water stream and the ground water aquifer. The actual limits of the zone of direct hydraulic continuity at a specific location will be determined by the department after an individual ground water application is received. The department will use accepted engineering methods for its determination.)) (1) In exception to the closure in WAC 173-532-040, future appropriation from the gravel aquifers under the permit exemption in RCW 90.44.050 may be allowed, under the following conditions:

(a) Where connections to an existing municipal water supply cannot be provided to the residences or development in a timely and reasonable manner in areas with a zoned density equal to or more dense than one residence per ten acres (high density areas); then the total amount of water that may be withdrawn from the gravel aquifer for domestic uses and irrigation of one-half acre of lawn and garden shall not exceed the amounts specified in (a)(i) and (ii) of this subsection. This condition does not apply to the Burbank area that drains to the Snake and Columbia rivers.

(i) For any one residence, one thousand two hundred fifty gallons a day.

(ii) For multiple residences that are part of a group use in addition to the limitations in (a)(i) of this subsection, the combined maximum water withdrawal for the development shall not exceed five thousand gallons per day.

(b) If the source of withdrawal is in the gravel aquifer in either the Burbank area or areas where the zoned density is less than one residence per ten acres, future permit-exempt ground water withdrawals for single or group domestic uses, watering of a lawn or noncommercial garden, or for industrial purposes, must be consistent with the requirements set in RCW 90.44.050.

(c) For stockwatering, water use from an exempt well in the gravel aquifer may not exceed: Seven hundred gallons per day on a tax parcel size of ten acres or less, two thousand five hundred gallons per day on a tax parcel size between ten and twenty acres or five thousand gallons per day on a tax parcel size twenty acres and greater. This exception shall not apply to feedlots or other activities not related to normal grazing land uses.

(d) All future appropriation in the high density areas, including for stockwatering, shall be required to install and maintain a water measuring device (water source meters) meeting specifications provided by the department. The user must report to the department, by December 31 of each year, monthly water use from May 1 to November 30.

(2) With limited water availability, closure of surface sources and the gravel aquifer to any future consumptive uses, and ongoing regulation of existing adjudicated rights, new permit-exempt withdrawals from the gravel aquifer are likely to have cumulative impacts on existing water rights, including instream flows and the closed water sources. Therefore, new permit-exempt users from the gravel aquifer in the high density areas must provide water-for-water mitigation for any outdoor water use, from May 1 to November 30, prior to such use unless the department specifies otherwise.

(3) The department will keep records of all future permit-exempt ground water appropriations from the gravel and basalt aquifers.

(4) In consultation with Walla Walla and Columbia counties, the planning unit and the Confederated Tribes of the Umatilla Indian Reservation, the department will identify means, such as the use of the trust water right program under chapter 90.42 RCW, to assist future permit-exempt users to offset the impacts of their proposed water use, either individually or jointly.

(5) If the department determines, in consultation with Walla Walla and Columbia counties, the planning unit and the Confederated Tribes of the Umatilla Indian Reservation, that the impacts of outdoor water use from new permit-exempt wells in the gravel aquifer are not fully mitigated and may impair existing rights, the department shall issue an order and public notice stopping all such use. The order and notice shall define the area for which the stoppage applies. The order shall continue until such time that adequate and reliable mitigation is in place.

[Order DE 77-30, 173-532-050, filed 12/14/77.]


NEW SECTION
WAC 173-532-055   Future surface water withdrawals for environmental enhancement projects.   The department finds there may be water available above existing water rights and instream flows that could be captured for environmental enhancement projects. This water is only available at specific locations where instream flows are established and during the nonclosure periods, as specified in Table III. A surface water withdrawal for an environmental enhancement project ("EEP") may be approved if it meets all of the following:

(1) EEP may be sponsored only by:

(a) The Confederated Tribes of the Umatilla Indian Reservation;

(b) A municipal governments located within Walla Walla or Columbia counties;

(c) An irrigation district or ditch company within the watershed;

(d) The Washington department of fish and wildlife;

(e) A conservation district within the watershed;

(f) A quasi-governmental organization within the watershed; or

(g) A nonprofit organization within the watershed.

(h) Individual landowners may qualify as a sponsor only when the said landowner is a participant in a project sponsored by one or more of the aforementioned qualifying sponsors.

(2) A proposed project may only qualify as an EEP after the project has received a consensus recommendation from the Confederated Tribes of the Umatilla Indian Reservation, the Planning Unit, Washington department of fish and wildlife, and planning unit initiating governments.

(a) The consensus recommendation shall occur after receiving technical advice and recommendations from the technical advisory group with representatives from:

(i) The Confederated Tribes of the Umatilla Indian Reservation;

(ii) The governor's salmon recovery office;

(iii) The Walla Walla basin watershed council;

(iv) The Washington department of fish and wildlife; and

(v) The department of ecology.

(vi) The United States Army Corps of Engineers, United States Forest Service, United States Fish and Wildlife Service, and National Marine Fisheries Service may be invited to participate in the technical review.

(b) Technical evaluation shall consider:

(i) The specific management objectives for the stream management reaches affected by the EEP;

(ii) Effects of the project on inward and outward migration of salmonids and ecological function provided by high stream flows; and

(iii) Cumulative effects of all environmental enhancement projects.

(c) The technical evaluation shall also weigh any detriment caused by storing some seasonal stream flows (e.g., high winter flows and flood flows) against any benefit the stored water would provide.

(3) An application for EEP must include a monitoring and adaptive management program and show ability to implement such a program. Applicants will define how they will measure and evaluate the project's effectiveness in achieving environmental enhancement goals. The technical advisory group may assist in developing the criteria for evaluating project effectiveness.

(4) Initial water use authorization for EEP will be for short-term. No appropriative right shall develop out of this authorization. The department may only issue a permanent water right if the project's intended benefits are being realized, on the advice of the technical group.

(5) All other applicable permits must be obtained from the department, Washington department of fish and wildlife, and other agencies, prior to construction or water use.

(6) Water right permits for EEP shall be subject to existing water rights and instream flows as established under this chapter.

(7) In consideration of the recommendations of the technical advisory group, the withdrawals shall be managed consistent with salmonid migration needs and with the protection of high flow functions.

(8) Monitoring and sampling shall be consistent with the monitoring plan developed and approved for the project. Daily records shall be kept of the quantity of water diverted to the project. Such records shall be made available to the department upon request.

(9) The department will maintain a record of all diversion for EEP approved in each stream management unit.

(10) The maximum allowable allocation for EEP within a stream management unit shall not exceed the values indicated in Table III.


Table III
Maximum Allowable Allocation for Environmental Enhancement Projects
(cubic feet per second)

Stream Location EEP Diversion Period Maximum Allowable Allocation*
Mill Creek at confluence with Walla Walla River (Walla Walla River, RM 33) to headwaters. Dec. 1 to May 31 125
Walla Walla River below confluence of Walla Walla River and Mill Creek (RM 32.4) to state line. Dec. 1 to May 31 300
North Fork Touchet at mouth of North Fork Touchet River to headwaters. Dec. 1 to April 30 110
Touchet River at Bolles to headwaters, excluding North Fork Touchet. Dec. 1 to April 30 175
*The total allowable allocation on the Touchet River and North Fork Touchet River shall not exceed 175 cfs. The total maximum allocation on the Walla Walla River and Mill Creek shall not exceed 300 cfs. Due to concerns over potential impacts on inward and outward migration of salmonids and ecological function of high flows the maximum allowable allocation may be considerably less.

[]


AMENDATORY SECTION(Amending Order 88-11, filed 6/9/88)

WAC 173-532-090   Compliance and enforcement.   ((In enforcement of this chapter, the department of ecology may impose such sanctions as are appropriate under authorities vested in it, including but not limited to the issuance of regulatory orders under RCW 43.27A.190 and civil penalties under RCW 90.03.600.)) (1) The department shall prepare and make available to the public, technical and educational information regarding the scope and requirements of this chapter. This is intended to assist the public in complying with the requirements of their water rights and applicable water laws and rules.

(2) When the department determines that a violation of this chapter has occurred, it shall:

(a) First attempt to achieve voluntary compliance, except in appropriate cases involving potential harm to other water rights or the environment. An approach to achieving voluntary compliance is to offer information and technical assistance to a violator. The information or technical assistance identifies, in writing, one or more means to accomplish the person's purposes within the framework of the law.

(b) If education and technical assistance do not achieve compliance, the department has the authority to 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 43.27A, 90.22 and 90.54 RCW. 88-13-037 (Order 88-11), 173-532-090, filed 6/9/88.]


NEW SECTION
WAC 173-532-120   Map.   For the purpose of administering this chapter, the boundaries of the Walla Walla River basin identified in the figure below are presumed to accurately reflect the basin located within Washington state.

[]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 173-532-060 Designation of ground water areas for specific uses.
WAC 173-532-070 Closure of ground water aquifer to further appropriation.
WAC 173-532-080 Evaluation of ground water applications.
WAC 173-532-110 Regulation review.

Washington State Code Reviser's Office