PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 08-15-021.
Title of Rule and Other Identifying Information: Upper Kittitas ground water rule, chapter 173-539A WAC.
Hearing Location(s): Walter Strom Middle School, Multi-Purpose Room, 2694 State Route 903, Cle Elum, WA, on February 11, 2009, at 7:00 p.m.; and at the Hal Holmes Center, 209 Ruby Street, Ellensburg, WA, on February 12, 2009, at 7:00 p.m.
Date of Intended Adoption: March 10, 2009.
Submit Written Comments to: Melissa Downes, 15 West Yakima Avenue, Suite 200, Yakima, WA 98902-3452, e-mail mnih461@ecy.wa.gov, fax (509) 575-2809, by February 20, 2009.
Assistance for Persons with Disabilities: Contact Judy Beitel, (360) 407-6878, by February 2, 2009. Persons with hearing loss, call 711 for Washington Relay Service. Persons with a speech disability, call (877) 833-6341.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule establishes a partial withdrawal of ground water within a portion of WRIA 39 in Kittitas County, Washington for the purpose of implementing a memorandum of agreement (MOA) entered into with Kittitas County on April 7, 2008. The partial withdrawal and restrictions are designed to minimize the potential for new a [a new] use of water that negatively affect flows in the Yakima River and its tributaries and does this in a way that minimizes effects on economic development.
Under RCW 34.05.350 the agency for good cause finds:
| • | The Yakima Basin is one of the state's most water-short areas. |
| • | Water rights with priority dates as old as 1905 were shut off during the 2001 and 2005 droughts, including the town of Roslyn's municipal supply. |
| • | Water supply in the Yakima Basin is limited and over-appropriated. |
| • | Western portions of Kittitas County are experiencing rapid growth and this growth is being largely served by exempt wells. |
| • | Exempt wells in this area may negatively affect the flow of the Yakima River or its tributaries. |
Statutory Authority for Adoption: RCW 90.54.050, 90.03.360, chapters 43.27A, 90.44 RCW.
Statute Being Implemented: RCW 90.54.050, 90.03.360, chapters 43.27A, 90.44 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: Tom Tebb, Central Regional Office, (509) 574-3989; Implementation and Enforcement: Melissa Downes, Central Regional Office, (509) 454-4259.
A small business economic impact statement has been
prepared under chapter 19.85 RCW.
Executive Summary
1. BACKGROUND: The Washington state department of ecology (ecology) is proposing a new rule, chapter 173-539A WAC, for the upper Kittitas County groundwater area. The rule is designed to minimize future adverse effects on flows in the Yakima River and its tributaries, while minimizing adverse effects on the local economy. This chapter puts in place permit-exempt well management measures identified in the memorandum of agreement (MOA) between Kittitas County and department of ecology. It creates a partial withdrawal of groundwater within upper Kittitas County by limiting the use of the groundwater exemption (RCW 90.44.050) for residential purposes.
Chapter 90.44 RCW regulates the use of groundwater of the state of Washington, and is supplemental to chapter 90.03 RCW, which regulates the use of surface waters of the state. The legislature enacted chapter 90.44 RCW to extend application of surface water statutes to the appropriation and beneficial use of groundwater within the state.
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 rule is consistent with legislative policy.
Rule Proposals: The key elements of the proposed rule include:
| • | Restricting permit-exempt groundwater withdrawals. |
| • | Allowing Kittitas County to require hydraulic assessments. |
| • | Measuring and reporting new groundwater withdrawals. |
We provide a brief description of compliance requirements below.
Water Rights Administration Under the Rule: Under the proposed rule, Kittitas County and ecology will comanage groundwater supplies until more is known about the aquifers and water supplies in northern Kittitas County. The proposed rule limits groundwater withdrawals in northern Kittitas County and addresses water supply issues for newly created residential developments and existing parcels.
It limits new residential developments served by wells to a withdrawal of 5,000 gallons per day (gpd) for each forty acres of land.
It limits parcels less than ten acres created after March 28, 2002 to 1,250 gpd.
It limits parcels greater than ten acres created after March 28, 2002, and those that create public water systems to an average of 125 gpd per acre, up to a maximum of 5,000 gpd.
For more detail on changes to water right administration, see the cost-benefit analysis.
Surface Water: There are no changes under this rule to surface water permit processing. In some cases, there may be expedited processing to place surface water rights into the trust water program. Ecology may also issue new surface water permits where trust water rights are held for mitigation purposes in the Yakima pilot water bank.
Groundwater Permits: Under the proposed rule, expedited processing of applications for groundwater hydraulically associated with the Yakima River may occur if the proposed use is for:
• Domestic.
• Group domestic.
• Watering lawn or noncommercial garden.
• Municipal water supply purposes.
Ecology may also issue new ground water permits when trust water rights are held for mitigation purposes in the Yakima pilot water bank. This cannot occur until ecology reaches a new agreement with the Yakima Nation and the United States Bureau of Reclamation that replaces or amends the 1999 settlement agreement.
Permit-Exempt Ground Water: Under the proposed rule, permit-exempt well users may use to 5,000 gpd for a new residential development1.
1 Any division of land involving an application that vested after July 8, 2008.
When outdoor watering may occur, ecology assumes each
parcel will use 1,250 gpd for residential purposes, unless a
condition is recorded as a covenant to use a lesser amount.
If a covenant placed on the parcels restricts all use of
permit-exempt ground water for watering lawn or garden,
ecology and the county will assume each parcel will use a
maximum of 350 gpd.
Changes and Transfers of Water Rights: Ecology will continue to process changes and transfers of existing water rights as allowed by chapters 90.03 and 90.44 RCW.
Impacts to Businesses in the Kittitas Groundwater Area: Most businesses are not directly affected by the proposed rule for the Kittitas groundwater area. Those that are required to comply with the rule are residential users of permit-exempt groundwater. Although not directly required to comply with the rule, residential land development businesses can be affected by the rule indirectly. The indirect effects may include adding well-use limit provisions to covenants that would then be passed on to the residential purchasers with their deed.
The proposed rule will also not directly affect existing water right holders.
Impacts to Businesses Dependant on Residential Permit Exempt Wells: As stated above, the proposed rule does not directly affect businesses but there is one possible cost for land development businesses.
Costs to Firms and Required Professional Services: As mentioned above, generally no business entities are required to comply with the proposed rule. The exception is if they would be required to place limits on permit-exempt well use in covenants for their residential developments.
Reporting and Recordkeeping: Permit Exempt Well Users: The proposed rule adds no reporting or record-keeping requirements for small businesses using permit-exempt wells. This rule restricts only residential uses.
Additional Professional Services: Ecology expects no added professional services for businesses, other than developers. The rule affects only new residential uses of permit-exempt wells. Developers may need to hire persons to install and calibrate source meters.
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, business entities that do residential land development may be required to comply with the proposed rule by adding well withdrawal limits to the covenants of the developed land.
3. QUANTIFICATION OF COSTS AND RATIOS: It is the purpose of this section to evaluate whether:
The proposed rules could cause businesses to lose sales or revenue.
The proposed rules would have a disproportionate impact on small businesses.
Revenue Impacts: As noted previously, only residential land development businesses may be required to comply with the proposed rule.
Existing water right holders might see some loss in the value of existing water rights. This in theory could lower revenues. Ecology recognizes this effect is likely to be very small and so we do not consider it further.
Distribution of Compliance Costs: No business is required to curtail water withdrawals as required by the rule for residential permit-exempt water uses.
It is possible that small businesses could have costs under the proposed rules if they provide service to residential development. However, these businesses are not required to comply with the rule therefore, are exempt from evaluating associated costs. This rule, for the most part, only places conditions of use on residential water uses, not the industries that serve them.
Known Costs: Businesses complying with the rule will incur very small, if any, costs. Businesses' entities that do residential land development may be indirectly required to comply with the proposed rule by adding well withdrawal limits to the covenants of the development. Ecology is unable to determine the very small costs of adding further wording to a development covenant. We are also unsure if the rule will affect future permit-exempt water rights.
Ecology has determined that this is a minor cost as defined in RCW 19.85.020(2) and 19.85.030 exempts ecology from needing to prepare a small business economic impact analysis.
The small costs to those required to comply with the proposed rule, may impose disproportionate costs to small businesses.
Conclusions: Only residential land development businesses may be indirectly required to comply with the proposed rule. Because the costs associated with adding some extra wording to development covenants is so small, ecology was unable to determine any costs to small businesses from this proposed rule.
Ecology has determined that this is a minor cost as defined in RCW 19.85.020(2) and 19.85.030 exempts ecology from needing to prepare a small business economic impact analysis. Ecology prepares this analysis for informational purposes only.
4. ACTIONS TAKEN TO REDUCE THE IMPACT OF THE RULE 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, ecology took no specific measures to reduce or mitigate these rule impacts. In general, only residential land development businesses may be affected.
5. THE INVOLVEMENT OF SMALL BUSINESS IN THE DEVELOPMENT OF THE PROPOSED RULE AMENDMENTS: Ecology and Kittitas County entered into a MOA calling for a study to better define the hydrogeology of upper Kittitas County. The study will provide information about water availability and the relationship between surface waters and groundwater. Ecology will use the information from the study to develop long-term water management strategies.
The proposed rule limits groundwater withdrawals in northern Kittitas County and addresses water supply issues for newly created residential developments and existing undeveloped parcels. It limits new residential developments served by wells to a withdrawal of 5,000 gallons per day for each forty acres of land.
Small business was involved in this public process.
6. THE STANDARD INDUSTRIAL CODES (SIC) OF IMPACTED INDUSTRIES: The industries listed below may be required to comply with the proposed rule. The following list shows SIC2 for small businesses that may be affected in complying with the rule. This serves as a representative sample of potential future businesses that may be affected.
2 Ecology has used North American Industry Classification System (NAICS) codes rather than SIC. It is a comparable system, used at
the federal and state level, and has replaced SIC codes in common use.
Table 1. Industries potentially affected by proposed
rules (NAICS):
| Land Subdivision and Development | Code 2331 |
| Land Subdivision | Code 2372 |
A copy of the statement may be obtained by viewing the web site at http://www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html, or contacting Lanessa Inman, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6862, fax (360) 407-6574, 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 viewing the web site at http://www.ecy.wa.gov/programs/wr/cro/kittitas_wp.html, or contacting Lanessa Inman, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6862, fax (360) 407-6574, e-mail linm461@ecy.wa.gov.
January 6, 2009
Polly Zehm
Deputy Director
OTS-2053.2
UPPER KITTITAS GROUND WATER RULE
(2) Ecology designed the partial withdrawal and related requirements to minimize the adverse effects on flows in the Yakima River and its tributaries, while minimizing adverse effects on the local economy.
(3) Based on technical research, Kittitas County may consider the potential for impairment of existing water rights, along with any other environmental impacts, during review of certain land use applications. The county may require mitigation or other ways to manage risks to reduce or eliminate impacts.
(4) The requirements in this chapter do not apply to areas outside of Kittitas County.
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In 2007, ecology received a petition seeking unconditional withdrawal of all unappropriated ground water in Kittitas County until enough is known about potential effects from new exempt wells on senior water rights and stream flows. Ecology consulted with standing committees of the Washington state legislature on the petition and proposed withdrawal. Ecology then rejected the proposed unconditional withdrawal, and instead signed a memorandum of agreement (MOA) with Kittitas County, which this chapter implements by establishing a partial withdrawal and other requirements.
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"Adjacent" means all parcels that either:
• Have any common boundary;
• Are separated only by roads, easements, or parcels in common ownership; or
• Are within five hundred feet at the nearest point.
"Application" as used in WAC 173-539A-050 and 173-539A-055 means a land use application to Kittitas County requesting:
• A subdivision;
• Short subdivision;
• Large lot subdivision;
• Administrative or exempt segregation;
• Binding site plan; or
• Performance based cluster plat.
"Common ownership" means any type of ownership interest held by an applicant including an oral or written contract for joint development between the applicant and any owner of adjacent lands. A contract for joint development includes, but is not limited to, contracts providing for shared use of services for permitting, engineering, architecture, environmental review, clearing or preparing land, or building roads, structures, or common water or sewer infrastructure.
"Ecology" means the department of ecology.
"Exemption" or "ground water exemption" means the exemption from the permit requirement for a withdrawal of ground water provided under RCW 90.44.050.
"Group use" means use of the ground water exemption for two or more parcels. A group use includes use of the exemption for all parcels of a proposed development and all parcels that are adjacent and held in common ownership with the proposed new residential development where use of the exemption commenced or will commence within five years of the date the current application was filed.
"Hydrogeologic assessment" means the report prepared by a licensed hydrogeologist addressing the elements identified in WAC 173-539A-060.
"Lands" refers to both singular "land" and plural "lands."
"MOA" or "Memorandum of Agreement" means the "Memorandum of Agreement between Kittitas County and the State of Washington, Department of Ecology Regarding Management of Exempt Ground Water Wells in Kittitas County" of April 7, 2008.
"New residential development" means any division of land involving an application that vested after July 8, 2008.
"New use of the ground water exemption" means a use begun on or after July 8, 2008.
"New use for residential purposes" means any new use of the ground water exemption for a new or additional residential purpose associated with an existing or new structure.
"Parcel" means any parcel, land, tract or other unit of land.
"Residential purposes" means all domestic use and/or lawn and noncommercial garden use of water on the parcel(s) in question under the ground water exemption. A dwelling unit is not required for a residential purpose to be present. Domestic use is a separate and distinct purpose of use from lawn and noncommercial garden use. Each use may have a different commencement date under the exemption. For purposes of this chapter all use limits refer to combined domestic and lawn and noncommercial garden use. All use of the lawn and noncommercial garden use may not exceed a one-half acre as required in RCW 90.44.050 for either a group domestic use or a single domestic use.
"Total water supply available" means the amount of water available in any year from natural flow of the Yakima River, and its tributaries, from storage in the various government reservoirs on the Yakima watershed and from other sources, to supply the contract obligations of the United States to deliver water and to supply claimed rights to the use of water on the Yakima River, and its tributaries, heretofore recognized by the United States.
"Upper Kittitas County" is the area of Kittitas County delineated in WAC 173-539A-990.
"Vested" means that under the applicable land use laws an application is considered complete such that the application shall generally be reviewed under laws existing at the time of vesting, unless a special exception may apply. All applications for plat approvals including preliminary plat approvals which were approved by Kittitas County prior to July 8, 2008, are considered to be vested.
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(2) Any new residential development within upper Kittitas County must not use more than 5,000 gallons per day (gpd) from the ground water exemption for residential purposes. When filing an application for a new residential development, the applicant must file a sworn statement to this effect with ecology and Kittitas County, to be recorded against the parcels in question. The residential development includes all parcels that are part of the proposed development or a larger group use.
(3) For use of the 5,000 gpd exemption limit for a new residential development, ecology and the county will assume each parcel will use 1,250 gpd for residential purposes, unless a condition is recorded as a covenant to use a lesser amount. If no exempt lawn or noncommercial garden watering will occur, and a covenant so restricting such use is placed on the parcel, ecology and the county will assume each parcel will use a maximum of 350 gpd.
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(a) Parcels less than ten acres created after March 28, 2002, may use water under the ground water exemption for residential purposes in an amount that does not exceed the lowest amount below:
(i) The amount stated in conditions or covenants on water use placed on the plat that created the parcel;
(ii) The amount stated in conditions on water use specified in the permit/approval of the public water system that is intended to serve the parcel; or
(iii) 1,250 gpd.
(b) Parcels ten acres and greater created after March 28, 2002, may use water under the ground water exemption for residential purposes in an amount that does not exceed the lowest amount below:
(i) The amount stated in conditions or covenants on water use placed on the plat that created the parcel;
(ii) The amount stated in conditions on water use specified in the permit/approval of the public water system that is intended to serve the parcel; or
(iii) An average rate of use of 125 gpd per acre up to a maximum of 5,000 gpd.
(c) This section does not restrict an owner from using more water through other legal permitted water rights.
(2) New uses for residential purposes on parcels created on or before March 28, 2002, in upper Kittitas County:
(a) Parcels created on or before March 28, 2002, must use no more than 5,000 gpd for all residential purposes.
(b) Such use may be further restricted by covenants or conditions on water use placed on the plat or in a land use approval, conditions on a public water system approval, or if a legal restriction applies to such use.
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(a) Submitted to Kittitas County and ecology in the form of a written report, signed by a licensed hydrogeologist; and
(b) Available as part of the project review under the State Environmental Policy Act.
(2) The hydrogeologic assessment may be based on available existing information or other new information as required by Kittitas County.
(3) The required elements of the report are as follows:
(a) Scope of the proposal including all of the following:
• The location;
• Proposed water source(s);
• Water use amounts; and
• The timing of the proposed use.
(b) General description including all of the following:
• The local geologic, hydrogeologic, and hydrologic setting;
• Identification of surface water and ground water features;
• Water sources;
• Recharge/discharge characteristics; and
• Surface water and ground water interactions.
(c) Site-specific description.
(d) Inventory and description of all of the following:
• All state issued surface water and ground water rights;
• All state issued surface water and ground water claims; and
• Exempt wells located within a one-year and five-year area of pumping influence.
(e) Identification and description of existing surface water or ground water rights that may be adversely affected by the proposed use of the ground water exemption.
(f) The licensed hydrogeologist's written professional opinion on the potential of the proposal to cause impacts to the natural and built environment including surface water flows.
(g) A statement of the report's limitations regarding its intended use, including scope, extent, and available data.
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(2) Metering data must be collected daily and reported within thirty days of the end of the recording period to Kittitas County and ecology. The following table shows the recording periods and the due dates for each metering report:
| Recording Period | Report Due No Later Than: |
| October 1 - March 31 | April 30 |
| April 1 - June 30 | July 30 |
| July 1 - July 31 | August 30 |
| August 1 - August 31 | September 30 |
| September 1 - September 30 | October 30 |
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(2) Ecology may expedite the processing of an application for a new surface water right or a ground water right hydraulically related to the Yakima River, under Water Resources Program Procedures PRO-1000, Chapter One, including any amendments thereof, if the following requirements are met:
(a) The application must identify an existing trust water right or pending application to place a water right in trust, if that such trust water right would have an equal or greater contribution to flow during the irrigation season, as measured on the Yakima River at Parker that would serve to mitigate the proposed use. This trust water right must have priority earlier than May 10, 1905, and be eligible to be used for instream flow protection and mitigation of out-of-priority uses.
(b) The proposed use on the new application must be for domestic, group domestic, lawn or noncommercial garden, and/or municipal water supply purposes of use within the Yakima River Basin. The proposed use must be consistent with any agreement governing the use of the trust water rights.
(3) If an application for a new water right is eligible for expedited processing under subsection (2) of this section and is based upon one or more pending applications to place one or more water rights in trust, processing of the pending trust water right application(s) shall also be expedited.
(4) Upon determining that the application is eligible for expedited processing ecology will do the following:
(a) Review the application to withdraw ground water to ensure that ground water is available from the aquifer without detriment or injury to existing rights, considering the mitigation offered.
(b) Condition the permit to ensure that existing water rights, including instream flow water rights, are not impaired if the trust water right is from a different source or located downstream of the proposed diversion or withdrawal. The applicant also has the option to change their application to prevent the impairment. If impairment cannot be prevented, ecology must deny the permit.
(c) Condition each permit to ensure that the tie to the trust water right is clear, and that any constraints in the trust water right are accurately reflected.
(d) Condition or otherwise require that the trust water right will serve as mitigation for impacts to "total water supply available."
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(2) When ecology finds that a violation of this rule has occurred, we shall first attempt to achieve voluntary compliance. One approach is to offer information and technical assistance to the person, in writing, identifying one or more means to legally carry out the person's purposes.
(3) To mitigate for potential impact of an exempt use to the total water supply available and to avoid potential future regulation in favor of senior water rights, ecology encourages exempt users to participate in a mitigation program through the Yakima Basin Pilot Water Bank or to obtain a senior water right.
(4) To obtain compliance and enforce this chapter, ecology may impose such sanctions as suitable, including, but not limited to, issuing regulatory orders under RCW 43.27A.190 and imposing civil penalties under RCW 90.03.600.
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(2) Ecology may review this chapter whenever:
(a) New information is available;
(b) A change of condition occurs;
(c) Statutory changes warrant the review; or
(d) Reviews described in WAC 173-539A-060 show changes are necessary.
(3) Kittitas County, or interested citizens may request that ecology exercise its discretion to review this chapter at any time.
(4) If ecology begins a review of this chapter, it will consult with Kittitas County.
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