WSR 07-17-007

PERMANENT RULES

DEPARTMENT OF ECOLOGY


[ Order 04-08 -- Filed August 2, 2007, 3:40 p.m. , effective September 5, 2007 ]


Effective Date of Rule: September 5, 2007.

Purpose: The adoption of these rule amendments is needed to protect instream values within the Walla Walla River basin and to avoid injury of existing water rights from future appropriations of water. The amendment establishes instream flow water rights; modifies seasonal surface waters closures; closes the gravel aquifers, which are directly connected to surface waters; limits future withdrawals during high-flow periods to projects resulting in net environmental benefits; manages future permit-exempt groundwater withdrawals from the gravel aquifer in "high density" areas; and limits stockwatering based on parcel sizes. Outside of high density areas and in the basalt aquifer, permit-exempt wells are allowed in accordance with RCW 90.44.050.

Citation of Existing Rules Affected by this Order: Amending chapter 173-532 WAC.

Statutory Authority for Adoption: Chapters 90.82, 90.54, 90.22, 90.03, and 90.44 RCW.

Adopted under notice filed as WSR 07-04-114 on February 7, 2007.

Changes Other than Editing from Proposed to Adopted Version: There are a number of changes from the proposed rule amendment published with the CR-102, and the 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 clarity to more precisely identify the rule amendment or requirement. The changes made do not change the substance or the intent of the rule as proposed.

WAC 173-532-010 Authority and purpose. No rule language changes were made.

WAC 173-532-020 Definitions. Language was added to the definitions of "consumptive use" and "nonconsumptive use" in order to clarify that if a use resulted in the diminishment of either "amount or quality of the water source," such use would be considered consumptive.

The definition of "domestic use" was modified to clarify that watering for gardens under RCW 90.44.050 is permissible only for "noncommercial" gardening. Clarification was made for consistency with the Court of Appeals Decision, Kim v. Pollution Control Hearings Bd.

The definition of "withdrawal" was modified for clarity and simplification. The words "for a beneficial use" were added for consistency with RCW 90.03.290, and the words "or use" were deleted for simplification. This change was also made in accordance to suggestions made in comments.

WAC 173-532-025 Establishment of stream management units. The stream management unit descriptions were changed for better accuracy. The description of Mill Creek MP 1 was changed to clarify that MP 1 covers segments of Mill Creek that are upstream from the Oregon portion of stream, rather than only being inclusive of the portion up to the state line. The revised description of MP 1 is consistent with the original intent.

WAC 173-532-030 Establishment of instream flows. Grammatical changes were made in this section to correct capitalization errors.

In subsection (2), language was modified to acknowledge that the instream flow recommendations submitted by the planning unit received a unanimous vote. This change was also made in accordance to suggestions made in comments.

WAC 173-532-040 Surface and ground water closed to further consumptive appropriations. In subsection (2), the reference to RCW 90.44.100 (2) and (3) was changed to refer only to RCW 90.44.100 and not to specific subsections. The change was made to more accurately reference the statute.

New subsection (4) was added to clarify that any unappropriated surface water and ground water from the gravel aquifer is unavailable for consumptive uses. New subsection (4) clarifies the original intent of the rule, which is to appropriate such water for instream purposes only.

WAC 173-532-045 Future permitting actions. Language added to clarify that future permitting decisions must also be consistent with existing statutes and other applicable requirements of law. This change was also made in accordance with suggestions made in comments. Other language was added for clarity and better readability.

In subsection (2), the words "is" and "and" were added for clarity and better readability. In subsection (2)(b), "or" was deleted and was replaced with "and" to correct previous error. This change was also made in accordance with suggestions made in comments.

In subsection (3), "only" was added to stress that this condition is not open to uses other than those intended for environmental enhancement projects. This change is consistent with changes made in WAC 173-532-040 and within original intent.

WAC 173-532-050 Protection of surface water rights from future permit-exempt ground water appropriations from the gravel aquifer. Overall, the structure of this section was modified for better readability and clarity. The numbering of subsections was changed to accommodate structural modifications.

New section WAC 173-532-050 now begins with a threshold sentence, which provides that all exemptions described herein will only be applicable when connection to an existing municipal water supplier is not possible. This language was originally included in subsection (1)(a) and has been moved to the front for clarity.

New subsection (1) addresses the area that drains to the Snake and Columbia rivers (Burbank area). As stated in the CR-102 draft language, permit-exempt withdrawals may occur in these areas as long as they are consistent with the requirements set in RCW 90.44.050. The CR-102 draft language addressed the same subject in numerous subsections. The provision addressing the Burbank area was moved to the front for added clarity and in accordance with suggestions from comments.

New subsection (2) addresses the limitations of withdrawals from the gravel aquifer in the high density areas. The substance is the same as previously included in subsection (1)(a). Examples of "outdoor uses" were added for clarity, and stockwatering was specifically mentioned as a use that is not included as an "outdoor use" under this subsection. These changes are consistent with original intent.

New subsection (3) addresses withdrawals in areas outside of the high density areas. The substance is the same as previously included in subsection (1)(b). The new language now refers to withdrawals for purposes "other than stockwatering." This language was added for clarity and consistency with the body of WAC 173-532-050. Rules on stockwatering are addressed in new subsection (4).

New subsection (4) addresses withdrawals for stockwatering. The substance is the same as previously included in subsection (1)(c). The new language now clarifies that feedlots "are not considered stockwatering for the purpose of this chapter." The language was changed to clear up any possible inference that watering for feedlots may otherwise be established without a permit. The term "tax parcel" was replaced with the term "legal lot of record." These changes were made in accordance with suggestions from comments.

New subsection (5) addresses metering requirements. The substance is the same as what was previously included in subsection (1)(d). After mention of "all future appropriation" the new rule version adds "from the gravel aquifer" in order to remind readers that this section applies only to withdrawals made from the gravel.

New subsection (6) addresses mitigation requirements. The CR-102 version of the proposed rule addressed mitigation in subsection (2). Both the final and CR-102 version require water-for-water mitigation for any outdoor water use from May 1 to November 30. In response to comments, the new version has added details on how the mitigation requirement will be implemented and enforced. The final rule provides that the mitigation requirement shall be delayed until May 1, 2008, and that the department may order illegal water users to cease and desist immediately.

New subsection (7) addresses record keeping of all future permit-exempt ground water appropriations. This subsection is identical to subsection (3) of the CR-102 version of the proposed rule.

New subsection (8) addresses how ecology will assist future permit-exempt users in identifying means to offset impacts. The substance is the same as that previously included in subsection (4). The new language adds that ecology will "develop a mitigation plan" to identify "methods and means" to offset impacts of proposed water use. This language was added to further clarify how ecology and other entities will provide assistance.

New subsection (9) addresses enforcement actions in the event that ecology and other entities determine that the impacts of outdoor water use are not fully mitigated. The substance is the same as previously included in subsection (5). New subsection (9) was modified only to clarify that full mitigation refers to what is required in WAC 173-532-050(6).

New subsection (10) addresses issues related to what does and does not fall under the rule (grandfathering) and beneficial use of permit-exempt wells. This subsection was added to clarify how the rule will be implemented, and is in accordance with comments requesting clarity on these issues. The new subsection provides that the priority date of a permit-exempt withdrawal is the date that water is first put to actual beneficial use. The language also clarifies that "beneficial use shall not be considered to occur until water is used within a residential structure."

WAC 173-532-055 Future surface water withdrawals for environmental enhancement projects. Subsection (4) addresses how a short-term permit for an environmental enhancement project (EEP) may become a permanent water right. The new language now references RCW 90.03.290 to stress that EEP must also be consistent with statutory requirements for new appropriations. This new language was added to recognize existing law.

Subsection (10) addresses maximum allocations for EEP. The word "allowable" was deleted before the words "allocation for EEP." The deletion was made for added clarity and consistency with the body of this section of the rule. This change is also in accordance with suggestions made in comments.

The title and subtitles of Table III were modified for consistency with the changes made in subsection (10) (see above).

WAC 173-532-090 Compliance and enforcement. No changes made.

WAC 173-532-120 Map. No changes made.

A final cost-benefit analysis is available by contacting Tryg Hoff, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6631, fax (360) 407-6574, e-mail THOF461@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 6, Amended 4, Repealed 5.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 6, Amended 4, Repealed 5.

Number of Sections Adopted on the Agency's Own Initiative: New 6, Amended 4, Repealed 5.

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: August 2, 2007.

Jay J. Manning

Director

OTS-9509.5


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 amount or quality 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 noncommercial 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 amount or quality of the water 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 of ground water, or the diversion of surface water for a beneficial use.

[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;

4600'29"N,

11807'03"W

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

Section 31;

T7N, R35E;

4602'36"N,

11829'24"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 0.5;

Section 32;

T10N, R39E;

4617'50"N, 11757'04"W

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

MP 11 (Touchet River at Bolles)

Department Gage No. 32B100

RM 40.4;

Section 7;

T9N, R37E;

4616'27"N, 11813'12"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.

[]


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. The instream flow recommendations submitted by the planning unit received the unanimous vote of the planning unit. In accordance with RCW 90.82.080 (2)(a), and unanimous vote of the planning unit, the priority date of the instream flows is the effective date of this chapter.

(3) Instream flow rights shall 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.

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

(4) All unappropriated surface waters and ground water from the gravel aquifer for which an exception to the closure does not apply, are hereby appropriated during the above periods of closure for purposes of protecting and preserving fish and wildlife and other instream values.

[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 only if consistent with the requirements of the surface and ground water statutes and other applicable requirements of law and if any one of the following conditions apply:

(1) The proposed water use is nonconsumptive.

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

(a) Impair existing water rights;

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

(c) Affect any closed gravel aquifer.

(3) The proposed surface water use would occur only 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.

[]


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.)) Where connection to an existing municipal water supply cannot be provided in a timely and reasonable manner, the following exceptions to the gravel aquifer closures in WAC 173-532-040 shall apply:

(1) Permit exempt withdrawals for purposes other than stockwatering may occur in the area that drains to the Snake and Columbia rivers (Burbank area), consistent with the requirements set in RCW 90.44.050.

(2) Permit exempt withdrawals may occur in areas with a zoned density equal to or more dense than one residence per ten acres (high density areas). However, future withdrawals from the gravel aquifer in the high density areas shall be limited to only domestic uses and outdoor uses, such as irrigation of lawn and noncommercial garden, outdoor washing, etc. Outdoor uses for the purposes of this subsection do not include stockwatering. The total amount of water that may be withdrawn shall not exceed the amounts specified in (a) and (b) of this subsection.

(a) For any one residence, one thousand two hundred fifty gallons a day (1,250 gpd).

(b) For multiple residences that are part of a group use in addition to the limitations in (a) of this subsection, the combined maximum water withdrawal for the development shall not exceed five thousand gallons per day (5,000 gpd).

(3) Permit exempt withdrawals for purposes other than stockwatering may occur in areas where the zoned density is less than one residence per ten acres, but must be consistent with the requirements set in RCW 90.44.050.

(4) Permit exempt withdrawals for stockwatering may occur as long as the water use from an exempt well in the gravel aquifer does not exceed: Seven hundred gallons per day (700 gpd) on a legal lot of record size of ten acres or less; two thousand five hundred gallons per day (2,500 gpd) on a legal lot of record size between ten and twenty acres; or five thousand gallons per day (5,000 gpd) on a legal lot of record size twenty acres and greater. Feedlots or other activities not related to normal grazing land uses are not considered stockwatering for the purpose of this chapter.

(5) All future appropriation from the gravel aquifer 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.

(6) To avoid and/or mitigate cumulative impacts on existing water rights (which for purposes of this chapter are considered to include the instream flows established herein and the seasonally closed water sources), new permit-exempt users from the gravel aquifer in the high density areas must provide water-for-water mitigation, meaning equivalent quantities of water, for any outdoor water use from May 1 to November 30. The effect of this mitigation requirement shall be delayed until May 1, 2008; however, if the ecology director finds that despite diligent and committed efforts, mitigation arrangements for new users cannot be reasonably obtained by that date, the director may grant an extension of up to one year. After May 1, 2008, any such withdrawal for outdoor uses commenced after the effective date of this rule must have mitigation in place during all times that the withdrawal occurs. This means that even if a withdrawal for outdoor uses commenced before May 1, 2008, that withdrawal is subject to the outdoor mitigation requirement after that date. Any such outdoor water use that occurs prior to mitigation being in place is deemed illegal and the department may order the water user to cease and desist outdoor water use immediately as well as seek any other available administrative or judicial remedies.

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

(8) In consultation with Walla Walla and Columbia counties, the planning unit and the Confederated Tribes of the Umatilla Indian Reservation, the department will develop a mitigation plan identifying methods and 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.

(9) 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 as required in WAC 173-532-050(6) 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.

(10) For purposes of this chapter the priority date of a withdrawal under the permit exemption in RCW 90.44.050, shall be the date upon which water is put to actual beneficial use on the subject property for the purpose of use in question. For domestic use, actual beneficial use shall not be considered to occur until water is used within a residential structure.

[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 and if consistent with the requirements for new appropriations under RCW 90.03.290.

(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 allocation for EEP within a stream management unit shall not exceed the values indicated in Table III.


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

Stream Location EEP Diversion Period Maximum 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 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 allocation may be considerably less.

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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.

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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