Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-09-146.

     Title of Rule and Other Identifying Information: Chapter 173-528 WAC, Water resources management program for the Salmon-Washougal Basin, WRIA 28.

     Hearing Location(s): Educational Services District, Clark and Pacific Rooms, 2500 N.E. 65th Avenue, Vancouver, WA, on August 26, at 7:00 p.m.; at the Cowlitz Expo and Conference Center, 1900 7th Avenue, Longview, WA, on August 27, at 7:00 p.m.; and at the Stevenson Community Library, Library Gallery, 120 N.W. Vancouver Avenue, Stevenson, WA, on August 28, at 7:00 p.m.

     Date of Intended Adoption: September 23, 2008.

     Submit Written Comments to: Department of ecology water resources web page at http://www.ecy.wa.gov/programs/wr/instream-flows/lewis_salmon_washougal.html, 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 September 10, 2008.

     Assistance for Persons with Disabilities: Contact Judy Beitel by August 16, 2008, TTY (800) 833-6388 or (360) 407-6878.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: In order to better manage water resources in WRIA 28, the local watershed planning unit recommended that ecology adopt, in rule, a water resource management strategy for the basin. Recommendations were approved by Clark, Cowlitz and Skamania county commissioners in July 2006. The new rule will cause portions of water reserved under chapter 173-592 WAC to be transferred to the management scheme in chapter 173-528 WAC. Under the proposal, chapter 173-592 WAC will be subsequently repealed in its entirety.

     The key rule elements include:

•	Setting instream flow levels in the watersheds to protect aquatic resources, including habitat for threatened and endangered salmonids;
•	Closing subbasins to future withdrawals with the exception of seasonal water use from the region's larger streams;
•	Designating "regional supply areas" for future water supply;
•	Establishing limited reservations of water for future use; and
•	Specifying conditions for accessing the water reserves to benefit instream resources and better manage limited supply.

     Reasons Supporting Proposal: RCW 90.82.130(4) states when a watershed plan is approved by a watershed planning unit and the county legislative authority, ecology, as a participating member of the planning unit, is obligated to use the plan for making future water resource decisions for the watershed. The proposal also furthers ecology's water management goals and statutory obligations.

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

     Statute Being Implemented: Chapters 90.03, 90.44, 90.54, 90.22 and 90.82 RCW.

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

     Name of Proponent: Department of ecology, governmental.

     Name of Agency Personnel Responsible for Drafting: Travis Burns, Headquarters, Department of Ecology, (360) 407-7207; Implementation and Enforcement: Thomas Loranger, S.W. Regional Office, Department of Ecology, (360) 407-6058.

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

     The objective of this small business economic impact statement (SBEIS) is to identify and evaluate the various requirements and costs that the proposed rules might impose on businesses. In particular, the SBEIS examines whether the costs on businesses from the proposed rules impose a disproportionate impact on the state's small businesses. RCW 19.85.040 describes the specific purpose and required contents of an SBEIS.¹

     Ecology is developing and issuing this SBEIS as part of its rule adoption process and to meet chapter 19.85 RCW. Ecology intends to use the information in the SBEIS to ensure that the proposed rules are consistent with legislative policy.

     Rule Proposals: The key elements of the proposed rules include:

•	Setting instream flow levels in the watershed to protect aquatic resources, including habitat for threatened and endangered salmonids.
•	Closing most subbasins to year-round future withdrawals.
•	Defining where water remains available, including year-round access in "regional supply areas," and seasonal interruptible water supplies from larger streams (Kalama, East Fork Lewis, Lewis, and Washougal rivers).
•	Creating water reservations to provide a reliable water supply for the twenty-year projected population growth in closed areas.
•	Specifying conditions to accessing the reservations to benefit stream resources and better manage limited supply.

     The proposed instream flows are designed to protect habitat. This makes less water available for future uses during low-flow portions of the year (May 15 through November 15). To provide a reliable, year-round supply of water for future uses, it is necessary to reserve water that would not be available even when the instream flows are not met. To do this, RCW 90.54.020 (3)(a) requires that ecology determine that the reservations would serve the overriding considerations of the public interest (OCPI).

     Water uses established after the instream flow rules are junior water rights and may be interrupted when instream flows are not met. Only interruptible water rights are typically available to group domestic and municipal water suppliers to meet future demands within their service areas.

     The proposed reservations give exempt uses, group domestic, and municipal systems more access to reliable water supplies, consistent with RCW 90.54.020(8) and the Growth Management Act (GMA). The reservations ensure a year-round, reliable water supply to meet demands estimated to occur through 2028. Future users from the reservations could obtain their water from either ground water or surface water sources.

     Analysis of Compliance Costs for Washington Businesses: We have assessed the impacts of the proposed rules by analyzing and comparing water right management under the proposed rules in contrast to current practices. The current framework or "baseline" includes the use of water by permit-exempt wells (RCW 90.44.050) and any administrative procedures for considering applications for both new water rights and changes to existing water rights. Implementation of chapters 90.22, 90.54, and 90.82 RCW are also part of this legal baseline. The proposed reservations allot water for new water rights.

     We provide a brief description of compliance requirements below. You can find further details of water management under existing practices and proposed rules in Appendices B and C.

     Water Rights Administration Under the Rules: The proposed chapters 173-527 and 173-528 WAC will create "instream flows." Instream flows are water rights for in-stream resources and would be protected from impairment by "junior" water rights -- those with a later priority date. This means junior water rights must stop use when stream flows do not meet the minimum levels set by the senior instream flows.

     The proposed rules also reserve water for future out-of-stream uses, which will not be subject to the instream flows. The reservations were recommended by the WRIA 27 and 28 watershed planning unit, a group representing a broad range of local interests. When negotiating the size of the reservations (see Appendix B), the planning unit considered both the office of fiscal management's regional population growth projections and the projected impacts to surface water flows. The reservations are also based on overriding considerations of the public interest. Water in the reservations would provide new noninterruptible water rights for those that qualify.

     The reservations allot water on a subbasin basis. Within each subbasin, a specific amount of surface water or ground water would be available to certain users, including:

•	City/county systems.
•	Public utility districts.
•	Other public water systems.
•	Permit-exempt well users.

     As well as creating the instream flows and reservations for new uses, the proposed rules clarify other requirements that might affect future uses. We describe the expected changes to water management below. For more detail on changes to water right administration, see the cost-benefit analysis.

     Surface Water: The decision process for surface water rights will be similar after the proposed rules as before. Currently (baseline), ecology grants water rights subject to flow conditions or requires mitigation during low-flow periods in the areas proposed for closure. The most significant effect of the rules relates to the creation of reservations that allocate water for new uses. Through the reservations, new surface water uses may continue even during low stream flow conditions.

     There may be minimal effects to water users not qualifying for the reservation. Certain nonpublic and larger scale water users (agriculture and industrial users) will not be able to qualify for direct access to the reservation. The proposed reservations do not provide for nonpublic uses of surface water. These businesses would not be able to withdraw water when water is not available (typically May 15 through November 15). During such periods, water users wanting a new water right would need to either:

•	Purchase or lease, and transfer an existing water right.
•	Suspend water use during periods of low flows.
•	Develop storage mechanisms.
•	Develop strategies, acceptable to ecology, to mitigate their impacts.

     However, we do not expect the rules to have a large effect on those that cannot directly access the reservations. These users face similar obstacles to gaining new water rights under current practices. Absent rule making, all new users would need to mitigate or use stored water during periods of low flow. Under the proposed rules, many will have increased access to water through a public water system that has gained rights through the reservation. We expect that most needs from expected regional growth will be satisfied through public water systems and permit-exempt wells.

     Ground Water Permits: As with surface water, ecology will also make decisions on ground water right applications similar to the baseline, except for uses from the proposed reservations. Applications for ground water in hydraulic continuity with rivers and streams in WRIAs 27 and 28 would be subject to flow conditions under the baseline or to the instream flows under the proposed rules.

     As with surface water, there may be minimal effects to those water users not qualifying for the reservation, but ecology does not expect such effects to change business practices. In particular, many small businesses may still be able to meet demands under the ground water permit exemption.² Ground water users under the proposed rules are also able to avoid interruption by showing that their use is not in hydraulic continuity with closed surface water bodies.

     Overall, the change in ground water permitting does not significantly affect businesses. However, the proposed rules reduce the administrative costs of ground water permitting. The rules close certain ground water areas, making case-by-case hydraulic connection determinations unnecessary.

     Permit-Exempt Ground Water: Under the proposed rules, permit-exempt well users would gain an uninterruptible permit-exempt water use under the reservation. Permit-exempt users currently withdraw water as authorized by local law and RCW 90.44.050. Although exempt from permitting, exempt wells remain subject to all other state water laws. Permit-exempt well use can be shut off if it impairs senior water rights. This has not yet occurred in WRIAs 27 and 28. Nonetheless, they remain susceptible to future curtailment if withdrawals result in impairment of a senior water right.

     The proposed rules reserve water for future exempt wells and are not subject to interruption to protect the created instream flows. The rules provide added assurances to small businesses that rely on year-round water from exempt wells. Small businesses that locate outside the service area of municipal water suppliers are most likely to use permit-exempt wells.

     Changes or Transfers of Water Rights: Ecology will continue to process changes or transfers of existing water rights as permitted by chapters 90.03 and 90.44 RCW. The process is the same with the proposed rules as with the baseline.

     Reservation of Water: The reservations of water, the use of water under the reservation, and the conditions of use are part of the proposed rules. The reservations will allow eligible water users the benefit of having a continuous, reliable source of water during low flow periods, with a few limits. These limits include the finite quantity of the reservations and the conditions to accessing reservation water.

     The proposed rules do not require permit-exempt uses to meter and report water use to ecology. However, local public water purveyors, the county, or a municipal government may require metering and reporting through ordinances adopted to implement the watershed plan. Ecology also has authority to require metering and reporting under RCW 90.03.360 in the future.

     Impacts to Businesses in WRIA 27 and 28: Of the proposed rules' elements, the created reservations will have the greatest impact on businesses. Businesses that need water only for potable use for employees and customers will receive benefits from the reservation. Businesses that also need water for commercial or industrial manufacturing processes and landscape or commercial irrigation will see both costs and benefits.

     The proposed rules will not directly affect existing water right holders. In general, the economic costs and benefits to businesses are from the business impacts from having less water in a river, but more water available for out of stream use. Under the proposed rules, the reservations can provide water for public water systems and permit-exempt uses, even during low flow periods, for a projected twenty-year period. Having the reservation makes water predictably and reliably available for more out of stream uses than under the baseline. Therefore, it is likely the proposed rules will have a positive effect on most of the affected businesses. An exception to this would be businesses that utilize water in the river. The possible impacts are described below.

     Impacts to Businesses Dependant on Stream Flows: As stated above, the proposed rules create a series of reservations. Accessing the reservations will allow entities to use water for various uses during low flow periods. This will slightly reduce the amount of water in the river and could impact in-stream benefits such as ecosystem services, recreation, and so on. For businesses that provide guide services such as rafting, fishing, and bird watching; or those dependent on dilution for waste removal; there could be a very minor impact. However, discussions with local interests show that the proposed flow reductions will result in little, if any, impact.

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

     Costs to Firms and Required Professional Services: As mentioned above, those business entities that depend on water in the river may experience costs from the proposed rules. Those businesses that would obtain water from the reservation are most likely to gain the benefits. The cost analyses required in chapter 19.85 RCW follow:

     Reporting and Recordkeeping: Permit Exempt Well Users: The proposed rules add no reporting or record-keeping requirements for small businesses using permit-exempt wells.

     Additional Professional Services: Ecology anticipates no added professional services. For water users qualifying for the reservations, the proposed rules reduce the need for small businesses to obtain consulting services. The proposed reservations make a reliable water supply available, without the expense and uncertainty of demonstrating water exists on a case-by-case basis.

     Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: We expect no additional equipment, supplies, labor, or administrative costs from the proposed rules.

     Other Compliance Requirements: As mentioned above, firms that depend on instream activities and potentially those that hold existing permits could incur adverse impacts.

•

The impacts to in-stream users would be specific to the firm, but is unlikely to be significant since few firms are dependent on instream flows.3

•

Existing water right holders could be impacted if the proposed rules resulted in changes to the value of their water right. This would ultimately only affect those that want to sell or lease a right, and only for the period until the reservations are fully allocated to new uses. The exact cost is difficult to determine since it depends on many factors and very few if any transfers would happen in this fashion.

     Creation of the reservation will be a net benefit for most businesses that need water. Water unavailable during low flow periods is damaging to any business that needs it for its own use or who are looking to develop residential or commercial properties.

     For those that do not require water during low flow periods, an interruptible water right is an option under both the current practices and proposed rules.

     In order to have water available during low flow periods under the baseline, water would have to be obtained through purchase, lease, transfers, or on-site storage. On-site storage for a low flow period can cost approximately $0.75 per gallon for small water systems.⁴ This would be typical for a residence connected to a public water system; the proposed rules avoid this cost for those using the reservations. For other users, the cost of storage would likely preclude it as an option.

     Currently, businesses needing water right permits in many areas must purchase or lease water. This can mean some cost for every low-flow season. This analysis assumes that water would be readily available for purchase or lease. If not the case, then prices would likely be very high.

     Quantification of Costs and Ratios: It is the purpose of this section to evaluate whether:

•	Compliance with the proposed rules will cause businesses to lose sales or revenue.
•	The proposed rules will have a disproportionate impact on small businesses.

     Revenue Impacts: As noted previously, the most likely significant impacts of the proposed rules would be from decreased flows in the river and the creation of the reservation.

•

The reduction of flows in the river is unlikely to significantly affect any firms within the basins.

•

Those firms that will now be able to access water from the reservation will experience a benefit from being able to more easily access reliable water supplies. We estimate that summer flows will not meet the proposed minimum instream flows in a majority of years. New permits issued with stream flow conditions would be interruptible under the baseline, as under the proposed rules. Storage would likely be required for all uses absent the rules. In that sense, the rules will represent a negative cost (net benefit) to firms.

     The net benefit to firms is the value of avoiding expensive storage, or purchasing or leasing water rights, or other mitigation options to access water during periods of low flow. This will likely lower costs to some potential water users and to that extent, may increase revenues.

     Existing water right holders might see some loss in the value of existing water rights and this could lower revenues. However, as mentioned above, this effect is likely to be relatively small and so we do not consider it further.

     Distribution of Compliance Costs: No business is required to access water from the reservations or comply with the proposed rules.

     It is possible that small businesses could have costs under the proposed rules if they pursue water rights outside the reservations and regional supply areas. Still, the cost should be similar or less to the expense now incurred, as ecology is likely to issue only interruptible rights if sufficient mitigation is not proposed. The rules, for the most part, only clarify the conditions for granting a new water right that exist in current practice. Ecology is unable to determine this cost as it would be very small and are unsure if future permitted water rights will be processed.

     Known Costs: No businesses are required to comply with the rules. Businesses that choose to qualify for the benefits of the reservations must meet the criteria for accessing the reservation.

     Ecology was unable to determine any measurable costs to small businesses from the proposed rules. If there were known costs to those required to comply with the proposed rules, it may impose disproportionate costs to small businesses. However, there is clearly a very large net benefit to those who qualify for the reservations. Those who qualify for the reservations are identified in the rules and are not directly small businesses.

     Conclusions: No businesses are required to access the reservations or are subject to conditions of the rules. Ecology was unable to determine any costs to small businesses from this proposed rule. Businesses of all sizes that qualify to use the reservation will experience net benefits from the rules. If there are known costs, the rules could have disproportional costs to small businesses. Ecology was unable to determine measurable costs.

     Actions Taken to Reduce the Impact on Small Business: As noted above, it is unlikely that there will be significant adverse impacts on businesses (small or large) as part of this rule making versus the baseline. Therefore, the proposed rules take no specific measures to reduce or mitigate these rule impacts. In general, small business seeking reservation water through an exempt well may have hypothetical advantages over a larger business with needs too large to be satisfied through a permit-exempt well.

     Involvement of Small Businesses in the Development of the Proposed Rules: The proposed rules have been developed as an outcome of the Lewis and Salmon-Washougal watershed planning process (WRIAs 27 and 28). This was an open process allowing for all entities to comment and take part as the project proceeded. Participants in the planning unit included small businesses and organizations representing small businesses. Public hearings will be held after the filing of the CR-102 to consider the rules and allow small businesses to provide further input.

     SIC Codes of Impacted Industries: No industries are required to comply with the proposed rules unless they seek to obtain new water right permits or permit-exempt water rights in the covered area. The following list shows standard industrial codes (SIC) codes for existing developable properties in the Lewis and Salmon-Washougal Basins.⁵ This serves as a representative sample of potential future businesses that may be affected.

Table 1. Industries potentially affected by proposed rules (North American Industry Classification System⁶)

     Office of financial management's NAICS based input/output model⁷ provides estimates of interdependence among industrial sectors in the state. Each sector not only produces and sells goods or services, but also purchases goods or services for use within its production process. Ecology expects jobs created through the proposed rules in these areas:

	Employment
Crop production	165
Animal production	62
Forestry and fishing	17
Logging	6
Mining	12
Electric utilities	56
Gas utilities	9
Other utilities	22
Construction	198
Food manufacturing	136
Textiles and apparel	23
Wood product manufacturing	17
Paper manufacturing	15
Printing	57
Petroleum and products	6
Chemical manufacturing	3
Nonmetallic mineral products manufacturing	15
Primary metals	1
Fabricated metals	13
Machinery manufacturing	5
Computer and electronic product	10
Electrical equipment	1
Aircraft and parts	0
Ship and boat building	4
Other transportation equipment	2
Furniture	22
Other manufacturing	32
Wholesale trade	271
Retail trade	2,666
Transportation and warehousing	255
Information	223
Finance and insurance	509
Real estate	552
Professional services and management	1,390
Educational services	236
Health services	2,348
Arts, recreation, and accommodation	390
Food services and drinking places	1,240
Other services	1,019
Total Employment	12,010

¹ Due to size limits for filing documents with the code reviser, the SBEIS does not contain the appendices that further explain ecology's analysis. Nor does it contain the raw data used in this analysis, or all of ecology's analysis of this data. However, the rule-making file contains this information and it is available upon request.

² In the state ground water code, the "ground water permit exemption" allows for certain uses of small quantities of ground water; including domestic, industrial, stockwatering, and noncommercial irrigation of less than one-half acre of land. RCW 90.44.040, see also Washington Attorney General Opinion (2005 Op. Atty Gen. Wash. No. 17).

³ Talks with local interests show few commercial activities in the basin depend on instream flows.

⁴ http://www.doh.wa.gov/ehp/dw/Publications/331-134-4-30-08.pdf.

⁵ Data provided by the Clark, Cowlitz and Skamania County assessor and by the Washington state employment security department was the basis for this table.

⁶ Ecology has used NAICS codes rather than standard industrial codes (SIC). It is a comparable system, used at the federal and state level, and has replaced SIC codes in common use.

⁷ http://www.ofm.wa.gov/economy/io/default.asp.

     A copy of the statement may be obtained by contacting department of ecology water resources web page at http://www.ecy.wa.gov/programs/wr/instream-flows/lewis_salmon_washougal.html or Lanessa Inman, Department of Ecology, 300 Desmond Driver S.E., Lacey, WA 98504, phone (360) 407-6862, fax (360) 407-7162, e-mail Linm461@ecy.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting department of ecology water resources web page at http://www.ecy.wa.gov/programs/wr/instream-flows/lewis_salmon_washougal.html or Lanessa Inman, Department of Ecology, 300 Desmond Driver S.E., Lacey, WA 98504, phone (360) 407-6862, fax (360) 407-7162, e-mail Linm461@ecy.wa.gov.

July 22, 2008

Polly Zehm

Deputy Director

OTS-1690.2

GENERAL
NEW SECTION
WAC 173-528-010   Authority and purpose.   (1) The department of ecology (ecology) adopts this chapter under the Watershed Planning Act (chapter 90.82 RCW), Water Resources Act of 1971 (chapter 90.54 RCW), Minimum Water Flows and Levels Act (chapter 90.22 RCW), Water code (chapter 90.03 RCW), Regulation of public ground waters (chapter 90.44 RCW), RCW 43.21A.064(9), and 43.21A.080.

     (2) This chapter shall not affect existing water rights, unless otherwise stated in the conditions of the water right in question. It shall also not affect federal Indian and non-Indian reserved rights.

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

     (4) The Salmon-Washougal and Lewis watershed management plan (plan) recommendations were approved in 2006 by the Salmon-Washougal and Lewis planning unit (planning unit) in accord with RCW 90.82.130. The planning unit is a group made up of Clark, Skamania, and Cowlitz county commissioners and a broad range of water use interests. Ecology shall use the plan as the framework for making future water resource decisions in the Salmon-Washougal watershed. Ecology shall rely upon the plan as a primary consideration in determining the public interest related to such decisions, including this rule adoption.

     (5) Ecology shall initiate a review of this chapter whenever new information, changing conditions, or statutory modifications make it necessary to consider revisions. Ecology and the planning unit should periodically evaluate the effectiveness of this chapter.

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

     "Appropriation" means a beneficial use of waters of the state, authorized by and consistent with all applicable laws and regulations.

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

     "Ecology" means the Washington state department of ecology.

     "Environmental restoration project" or "ERP" means a project with a primary purpose of restoring salmonids, requiring a temporary use of water.

     "Habitat-forming function" means a physical, chemical, or biological function that is necessary to create and maintain natural or desired habitat conditions that benefit fish and other aquatic life. Habitat forming functions include but are not limited to creating and maintaining the following: Channel migration, gravel and sediment transport, water quality, nutrients, large woody material recruitment, floodplain flows, and riparian habitat.

     "Habitat-related action" means enhancing desirable riparian, stream, wetland, or floodplain functions and related biological, chemical, and physical processes.

     "Instream flow" means a level of stream flow, established under chapters 90.03, 90.22, 90.54 and 90.82 RCW, necessary in perennial streams to preserve wildlife, fish, scenic, aesthetic, and other environmental and navigational values. The term instream flow is synonymous with "minimum flow" as used in chapters 90.03 and 90.22 RCW, "base flow" as used in chapter 90.54 RCW, and "minimum instream flow" as used in chapter 90.82 RCW.

     "Interruptible use" means a type of water use that relies upon withdrawals on a periodic or seasonal basis that if interrupted would not cause substantial hardship or health or safety concerns, or that is highly unlikely to be interrupted during the expected period of use. For the purposes of this chapter, interruptible uses are subject to the instream flows set in WAC 173-528-060.

     "Municipal water supplier" is defined in RCW 90.03.015.

     "Net stream flow depletion" means the total depletion of water from a subbasin that may be available for future use under the reservation set in this chapter. The net stream flow depletion equals the flow depletion that remains after performance of offsetting actions, and is available for use only after applicable conditions in WAC 173-528-110 have been met.

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

     "Permit-exempt withdrawal" or "permit exemption" means a ground water withdrawal exempted from permit requirements under RCW 90.44.050, but otherwise subject to surface and ground water statutes and other applicable laws. For the purpose of this chapter, stockwater use does not include feedlots or other activities not related to normal grazing land uses.

     "Planning unit" means the Salmon-Washougal and Lewis watershed planning unit, established under chapter 90.82 RCW, and all successors, formally designated by the Salmon-Washougal and Lewis watershed planning initiating governments.

     "Public water system" means any system, excluding a system serving only one single-family residence and a system with four or fewer connections all of which serve residences on the same farm, providing piped water for human consumption, including any collection, treatment, storage, or distribution facilities under control of the purveyor and used primarily in connection with the system; and collection or pretreatment storage facilities not under control of the purveyor but primarily used in connection with the system.

     "Regional supply area" means a defined area where ecology finds water to be available for future ground water withdrawal. Regional supply areas are designated by WAC 173-528-090 or by order of ecology.

     "Reservation" means an allocation of water for future beneficial uses. For the purposes of this chapter, the reservation is not subject to instream flows set in WAC 173-528-060, nor to closures set in WAC 173-528-070. The reservation is senior to the instream flow water rights set in WAC 173-528-060.

     "Water-related action" means an offsetting activity that provides a quantity of water during certain times and at certain places that essentially replaces water at or upstream of where a proposed water right would impact surface flow. Water-related actions include but are not limited to acquiring an active water right or donation of a water right to the trust water right program under chapter 90.42 WAC.

     "Water right" means a right to make beneficial use of public waters of the state, including any water right established for instream flow purposes or a permit-exempt ground water withdrawal.

     "Watershed plan" means the Salmon-Washougal and Lewis watershed management plan, adopted on July 21, 2006, by the Clark, Cowlitz, and Skamania county commissioners.

     "Withdrawal" means the extraction of ground water, or the diversion of surface water for a beneficial use.

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     (2) When ecology 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, ecology has the authority to issue a notice of violation, a formal administrative order under RCW 43.27A.190, assess penalties under RCW 43.83B.336 and 90.03.600, or may seek criminal enforcement under RCW 90.03.400, 90.03.410, and 90.44.120.

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     INSTREAM FLOWS AND CLOSURES
NEW SECTION
WAC 173-528-050   Stream management control points.   Ecology hereby establishes the following stream management control points shown in Table I. Management point locations are shown in WAC 173-528-030.

Table I
Stream Management Control Point Information

Stream Management Point Name	Control Station by River Mile (RM); Latitude (Lat.), Longitude (Long.)
Whipple Creek (at 179th St. crossing)	RM 2.7; 45°45'00"N, 122°42'52"W
Mill Creek (at North Salmon Creek Rd.)	RM 0.02; 45°43'50"N, 122°37'39"W
Weaver Creek (at 199th Rd. crossing)	RM 0.04; 45°44'33"N, 122°32'48"W
Morgan Creek (at 182nd St. crossing)	RM 1.8; 45°44'47"N, 122°29'13"W
Rock Creek (near 213th Rd.)	RM 0.3; 45°46'40"N, 122°26'47"W
Little Washougal River (at Highway 140 crossing)	RM 0.02; 45°36'26"N, 122°20'37"W
Washougal River (at Hathaway Park, Ecology gage 28B090)	RM 3.6; 45°35'02"N, 122°20'36"W
West Fork Washougal River (at Skamania Hatchery)	RM 0.8; 45°37'18"N, 122°13'07"W
Gibbons Creek (at Frontage Rd. crossing)	RM 1.6; 45°34'31"N, 122°18'53"W
Lawton Creek (at Highway 14 crossing)	RM 0.45; 45°33'39"N, 122°16'00"W
Duncan Creek (at Highway 14 crossing)	RM 0.3; 45°36'47"N, 122°03'16"W
Woodward Creek (at Beacon Rock State Park Rd. crossing)	RM 0.25; 45°37'17"N, 122°01'25"W
Hardy Creek (at Highway 14 crossing)	RM 1.6; 45°38'07"N, 122°00'13"W
Hamilton Creek (near North Bonneville)	RM 1.3; 45°38'28"N, 121°58'39"W
Greenleaf Creek (at Cascade Drive crossing)	RM 0.3; 45°39'15"N, 121°57'29"W
Upper Lacamas Creek (at NE Goodwin Rd. crossing)	RM 5.5; 45°38'20"N, 122°27'25"W
Lower Lacamas Creek (NE 3rd Ave. crossing)	RM 0.4; 45°35'26"N, 122°23'28"W
Burnt Bridge Creek (at Arnold Park)	RM 3.0; 45°39'05"N, 122°38'57"W

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     (2) Instream flows established in this chapter are water rights, which protect instream values from future consumptive appropriations. The priority date of the instream flows is the effective date of this chapter. In accordance with RCW 90.82.080, this priority date received unanimous approval from the planning unit.

     (3) Instream flow rights shall be protected from impairment by any new water rights commenced after the effective date of this chapter and by all future changes and transfers of senior and junior water rights, including both surface and ground water rights. The following water rights are not subject to the instream flows:

     (a) A water right commenced before the effective date of this chapter, unless stated in the conditions of the water right.

     (b) Water rights appropriated from the reservation of water established in WAC 173-528-110.

     (c) Water rights for environmental restoration purposes under WAC 173-528-140, unless included as a permit condition.

     (4) Instream flows, expressed in cubic feet per second (cfs), are measured at the stream management control points in WAC 173-528-050. Instream flows apply to all stream reaches that contribute to flow at stream management control points, as shown in Table II of this section. For reaches that are downstream of all management points, the flows established for the nearest upstream management control point shall apply to those reaches. However, if more than one management point is immediately upstream, the combined flow of the points shall be used.

Table II
     Instream Flows in the Salmon/Washougal Basin (cubic feet per second)

Month	Stream Management Control Point
	Washougal River, RM 3.6	Weaver Creek, RM 0.04	Gibbons Creek, RM 1.6	Whipple Creek, RM 2.7	Mill Creek, RM 0.02	Morgan Creek, RM 1.8	Rock Creek, RM 0.3
January	425	12	27	28	27	17	36
February	425	23	49	51	50	33	63
March	375	23	49	51	50	33	63
April	375	23	49	51	50	33	63
May	375	23	49	51	50	33	63
June	525	15	33	34	33	22	42
July	240	15	33	34	33	22	42
August	168	4	11	12	11	7	15
September	264/425*	4	11	12	11	7	15
October	425	12	27	28	27	17	36
November	425	12	27	28	27	17	36
December	425	12	27	28	27	17	36
*The Washougal River, RM 3.6, instream flow right is for 264 cubic feet per second from September 1 to September 15, and 425 cubic feet per second from September 16 to September 30.

Month	Stream Management Control Point
	Little Washougal River, RM 0.02	W.F. Washougal River, RM 0.8	Lawton Creek, RM 0.45	Duncan Creek, RM 0.3	Woodward Creek, RM 0.25	Hardy Creek, RM 1.6	Hamilton Creek, RM 1.3
January	193	205	24	21	42	40	72
February	193	205	44	39	72	69	117
March	160	169	44	39	72	69	117
April	160	169	44	39	72	69	117
May	160	169	44	39	72	69	117
June	107	112	29	26	48	46	78
July	107	112	29	26	48	46	78
August	48	51	10	8	18	17	33
September	193	205	10	8	18	17	33
October	193	205	24	21	42	40	72
November	193	205	24	21	42	40	72
December	193	205	24	21	42	40	72

Month	Stream Management Control Point
	Greenleaf Creek, RM 0.3	Upper Lacamas Creek, RM 5.5	Lower Lacamas Creek, RM 0.4	Burnt Bridge Creek, RM 3.0
January	31	39	112	20
February	55	39	112	38
March	55	39	96	38
April	55	39	96	38
May	55	39	96	38
June	37	39	64	25
July	37	39	64	25
August	13	39	27	8
September	13	39	112	8
October	31	39	112	20
November	31	39	112	20
December	31	39	112	20

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Table III
Surface Water Closures

Subbasin      Name*	Affected Reach
Salmon Creek	Salmon Creek from confluence with Lake River (45°43'32"N, 122°44'07"W) to headwaters, including tributaries.
	Whipple Creek from confluence with Lake River (45°45'30"N, 122°44'57"W) to headwaters, including tributaries.
Burnt Bridge Creek	Burnt Bridge Creek from mouth at Vancouver Lake to headwaters, including tributaries.
Lacamas Creek	Lacamas Creek from confluence with Washougal River (45°35'13"N, 122°23'40"W) to headwaters, including tributaries.
Washougal River	Washougal River from mouth at Columbia River to headwaters, including tributaries.
Columbia River Tributaries	All surface waters in the Columbia River tributaries subbasin from mouth at Columbia River to headwaters, including tributaries.
*Subbasin boundaries are shown in WAC 173-528-030, and are consistent with the boundary descriptions used in the watershed plan.

     (2) Based on the hydrogeology of the basin, and the location and depth where ground water withdrawals generally occur, there is a high likelihood that future ground water withdrawals would capture water that affects closed surface waters. Therefore, the basin is closed to new withdrawals of ground water (including any new permit-exempt withdrawals) that would affect closed surface waters, except as provided in WAC 173-528-080.

     (3) Applications for a withdrawal that would not affect the closed reaches, listed in Table III, shall be evaluated on a case-by-case basis under applicable law.

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     FUTURE WATER RIGHTS
NEW SECTION
WAC 173-528-080   Future water rights, generally.   A new surface or ground water appropriation (including any permit-exempt ground water withdrawal) may be commenced only if consistent with the surface and ground water statutes and other applicable requirements of law and if any one of the following seven conditions (subsections (1) through (7) of this section) apply:

     (1) The proposed water use is nonconsumptive.

     (2) The proposed surface water use would not affect any of the surface waters closed in WAC 173-528-070, Table III.

     (3) The proposed ground water withdrawal is located where it would not affect any of the surface waters closed in WAC 173-528-070, Table III by either meeting condition (a) or (b) of this subsection:

     (a) The person or entity seeking to commence a proposed ground water use shows, through scientifically sound studies and technical analysis, that the ground water use would not affect any of the closed surface waters identified in WAC 173-528-070, Table III.

     (b) The proposed ground water withdrawal occurs in a regional supply area designated in WAC 173-528-090 or by order of ecology.

     (4) The person or entity seeking to commence the new appropriation submits a scientifically sound mitigation plan, and such plan is approved by ecology. A mitigation plan must offset water-for-water the impacts of a proposed withdrawal, and provide adequate assurances that the mitigation will in fact occur. Mitigation may be performed individually or as a group.

     (5) The proposed water use qualifies as an interruptible use as defined in WAC 173-528-020, and meets the criteria in WAC 173-528-100.

     (6) The proposed water use qualifies for the reservation established and as conditioned in WAC 173-528-110.

     (7) The proposed use is for an environmental restoration project and meets the criteria in WAC 173-528-140.

[]

     (2) Based on local hydrology, ecology finds that ground water withdrawals made in areas designated below meet the conditions for regional supply areas in subsection (1) of this section and are so designated:

     (a) The Vancouver Lake Lowlands Area, defined as all lands located west of the Burlington Northern Santa Fe Railroad right of way that are within Water Resource Inventory Area 28; and

     (b) The Steigerwald Wildlife Refuge Area, defined as all lands located east of 15th Street in the city of Washougal, south of Washington State Highway 14, and west of Lawton Creek.

     (3) Ecology may by order designate other regional supply areas that meet the criteria in subsection (1) of this section.

     (4) In order to protect instream values of surface waters in regional supply areas, ecology reserves the right to deny any withdrawals whereby drawdown effects from pumping would create a significant impact to local surface waters. For the purposes of this section, significant impact includes but is not limited to a noticeable reduction in lake level or flow in local creeks.

[]

     (2) Prior to commencement, the person or entity seeking a new interruptible appropriation must demonstrate a seasonal need and provide assurances that any effects on surface waters that may result from withdrawals will be limited from November 16 to May 14 and only from the Washougal River.

     (3) Ecology shall deny an appropriation for interruptible use if such use, or the cumulative effects of such uses, would compromise habitat-forming functions provided by high flows. In no case shall new individual or cumulative allocations exceed one hundred cubic feet per second. This allocation limit is based upon an allowance for ten percent of the average historic flow. The allocation limit may be lowered on a case-by-case basis whenever more protection of habitat-forming functions is needed.

     (4) Interruptible uses are subject to existing water rights and instream flows set in WAC 173-528-060.

[]

     Based on this finding, ecology hereby allocates an amount and rate of use of water for specific water users and subbasins, as indicated under the subtitle "Net streamflow depletion" in Table IV.

     This reservation is available to a user only if the conditions set forth in subsection (2) or (6) of this section are met, as well as any applicable requirements of law, including but not limited to all water resource laws and regulations.

     (2) Ecology may approve a water right application for water from the reservation if all of the following conditions in (a), (b), (c), and (d) of this subsection are met:

     Alternatives analysis

     (a) The applicant demonstrates that no practicable supply alternatives to the reservation are available. In order to satisfy this condition, an applicant must demonstrate consideration of other regional water sources to supply water for the same use now being proposed, including:

     (i) Municipal and public water system supply;

     (ii) Water from a ground or surface water source, which may be withdrawn without affecting any of the surface waters closed in WAC 173-528-070, such as water from a hydraulically disconnected deep aquifer source or regional supply area; and

     (iii) Supply options from surface and ground water storage.

     Water-related offset

     (b) The applicant demonstrates it will offset the overall streamflow depletion(s) through water-related actions to the maximum extent practicable. Applicants should offset at least one-half of the overall streamflow depletion(s) through water-related actions.

     (i) In evaluating the adequacy of water-related actions to offset depletions, ecology will evaluate the action based on the degree of aquatic benefit it would provide. A water-related offset may have a greater or lesser benefit due to the seasonality, location, or quality of water provided. The level of benefit will be used to determine if any additional offsets will be required of the applicant.

     (ii) Ecology will consider water-related offsets only to the extent that reasonable assurance exists that such offsets will be successfully delivered or donated to the trust water right program under chapter 90.42 RCW where delivery is legally guaranteed.

     Habitat-related offset

     (c) After satisfying the water-related offset requirement in (b) of this subsection, an applicant must offset any remaining streamflow depletion through habitat-related actions that create or enhance habitat. Habitat-related offsets must compensate for the habitat loss or degradation that will result from the net streamflow depletion.

     An applicant must provide adequate assurances that a habitat-related action in fact occurs. Ecology, as appropriate, shall condition use of the reservation with performance standards and monitoring requirements, or require financial assurance mechanisms prior to reservation use.

     Impact analysis

     (d) The applicant must demonstrate that a proposed appropriation will not significantly impact tributaries to subbasin mainstems. For the purposes of this section, significant impact means to noticeably affect instream values protected under RCW 90.54.020(3).

     Application review and permitting

     (3) In determining practicability in subsection (2) of this section, ecology will consider both economic and logistic considerations, as well as guidance from the watershed plan.

     (4) Ecology, in consultation with the department of fish and wildlife, will evaluate the adequacy of proposed offsets and alternatives analysis in subsection (2) of this section. The evaluation shall be consistent with the watershed plan and guidance documents approved by ecology. Ecology will also consider recommendations and technical advice received from the planning unit or by an advisory committee, formally designated by the planning unit.

     (5) Ecology will issue a permit for use of water equal to the amount it determines appropriate to allocate from the reservation, and such amount will be debited from the total reservation amount. The total quantity of water appropriated shall not exceed the amount and rate listed under the subtitle "Net streamflow depletion" in Table IV. However, ecology will issue a permit for a quantity beyond the amount debited from the reservation for the following:

     (a) Water-related offsets to the extent such offsets are water-for-water, to the satisfaction of RCW 90.03.380 or 90.44.100, any other applicable laws, and terms of an approved mitigation plan; and

     (b) Water use to the extent closed water sources are not affected and to the satisfaction of applicable requirements of law, including but not limited to all water resource laws and regulations.

     Permit-exempt ground water use

     (6) The requirements in subsection (2) of this section do not apply to permit-exempt ground water uses. However, permit-exempt ground water uses under RCW 90.44.050 are subject to both of the following conditions in order to occur under the reservation:

     (a) Future permit-exempt well use may not occur where connection to an existing municipal water supplier can be provided in a timely and reasonable manner. Determinations of timely and reasonable shall be consistent with public water system plans and local laws, including but not limited to Clark County Code 40.370.020.

     (b) Water use from a permit-exempt ground water well must be consistent with the allocation limits of this reservation and the Clark and Skamania County code and other applicable laws, including the statute on permit exemptions, RCW 90.44.050. Single or group domestic uses under the permit exemption shall not exceed five thousand gallons per day. Irrigation of lawn and noncommercial garden under the permit exemption shall not exceed one-half acre.

Table IV
Allocation of Reservation

Subbasin Name*	Water User**	Expected Streamflow Depletion without Offset (overall depletion) cubic feet per second (cfs)	Expected Water-related Offset Requirement (cfs)	Net Streamflow Depletion*** (cfs)
Salmon Creek	Clark Public Utility, Battle Ground and Ridgefield	0.25	0.13	0.13
	Permit-exempt ground water wells	0.12	0.00	0.12
Burnt Bridge	City of Vancouver	0.04	0.02	0.02
Lacamas Creek	City of Camas	1.00	0.50	0.50****
	Clark Public Utility	0.60	0.30	0.30
	Other public water systems	0.37	0.19	0.19
	Permit-exempt ground water wells	0.17	0.00	0.017
Washougal River	City of Camas	1.00	0.50	0.50****
	Other public water systems in Clark County	0.37	0.19	0.19
	Permit-exempt ground water wells in Clark County	0.17	0.00	0.17
	Other public water systems in Skamania County	0.20	0.10	0.10
	Permit-exempt ground water wells in Skamania County	0.64	0.00	0.64
Columbia River Tributaries	Public water systems in Clark County	0.21	0.10	0.10
	Permit-exempt ground water wells in Clark County	0.12	0.00	0.12
	Public water systems in Skamania County	0.21	0.10	0.10
	Permit-exempt ground water wells in Skamania County	0.12	0.00	0.12
*Subbasin boundaries are shown in WAC 173-528-030, and are consistent with the boundary descriptions used in the watershed plan.
** In the Salmon-Washougal and Lewis watershed management plan, the term "domestic wells" has the same meaning as "permit-exempt ground water wells" and the term "small community water systems" has the same meaning as "public water systems."
*** If conditions in subsections (2) and (6) of this section are satisfied, the net depletion of a closed water source, set in WAC 173-528-070, shall not exceed the quantities listed for specific users.
****The total net stream flow depletion for the city of Camas from both Lacamas and Washougal river subbasins shall not exceed 0.50 cfs.

[]

     (2) Ecology hereby transfers unappropriated water from the existing reservation for Clark County in WAC 173-592-070 in such quantities and to the users and areas of use in Clark County as set forth in WAC 173-528-110, Table IV and WAC 173-527-110, Table V. Pursuant to this transfer, the priority date of withdrawals from all Clark County portions of the reservation in WAC 173-528-110 is August 13, 1986. However, the designation of specific municipal suppliers in this reservation does not create a right for these entities to use such water. Such a right will arise only if a permit is applied for by such municipal suppliers to use water under the reservation and approved by ecology after applying the legal tests for a new appropriation. With respect to any water for which a permit has not been granted, ecology reserves the right to modify in all respects or rescind the reservation by future rule making.

     (3) Based on new information made available through the local watershed planning process and hydrologic conditions as of the time of this rule making, ecology has determined that the remaining water reserved under WAC 173-592-070, which was not transferred in subsection (2) of this section or previously appropriated is no longer supported by available information and science. Therefore, chapter 173-592 WAC is hereby repealed in its entirety and all water reserved under that rule that has not been transferred or appropriated is hereby returned to the state. This repeal is not intended to affect any existing water rights issued under the reservation.

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     (2) For an appropriation under a permit, ecology will account for water use under the reservation based on authorized quantities under water right permits or certificates, and according to WAC 173-528-110(5).

     (3) For permit-exempt ground water appropriations, ecology will deduct a standard amount of two hundred forty gallons per day for each well. For a group domestic water system under the permit-exemption, the standard amount will be applied for each domestic or residential service connection. The standard amount will be adjusted periodically to reflect actual maximum daily use during low flow conditions. The standard amount assumes a rate of septic recharge from an on-site septic system. In the event that on-site septic recharge is known not to occur at a well site, ecology will deduct an additional five hundred sixty gallons per day. Additionally, ecology reserves the right to account for water use based on the best available information contained in well logs, approvals issued by local jurisdictions, or other documents.

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

     (5) Ecology shall notify either Clark or Skamania County and the planning unit, when it determines that fifty percent, seventy-five percent, and one hundred percent, respectively, of the reservation is appropriated for a subbasin.

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     (1) A future withdrawal for an ERP may be approved only if it meets all the following:

     (a) The proposed water use is for a bypass flow for salmonid restoration or riparian planting project, and the primary purpose of the project is restoration of salmonids.

     (b) The proposed project will result in aquatic habitat benefits, and such benefits will exceed any detriment to aquatic habitat that may be caused by reductions in flow at specific locations and times of withdrawal.

     (c) The proposed use qualifies for a temporary permit.

     (2) Ecology, in consultation with the department of fish and wildlife, will evaluate proposed ERPs. ERPs approved by ecology are not subject to closures or instream flows set in this chapter, unless otherwise conditioned by the permit.

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OTS-1691.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 173-592-010	Purpose.
WAC 173-592-020	Authority.
WAC 173-592-030	General.
WAC 173-592-040	Reservation source of supply area defined.
WAC 173-592-050	Definitions.
WAC 173-592-060	Petition received -- Notice.
WAC 173-592-070	Reservation.
WAC 173-592-080	Monitoring program.
WAC 173-592-090	Water quality.
WAC 173-592-100	Exemptions.
WAC 173-592-110	Regulation review.
WAC 173-592-115	Appeals.
WAC 173-592-120	Reservation source of supply area map.

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