WSR 09-24-080

PERMANENT RULES

DEPARTMENT OF ECOLOGY


[ Order 04-02 -- Filed November 30, 2009, 2:25 p.m. , effective December 31, 2009 ]


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

Purpose: The adoption of this water management rule is needed to protect instream values within portions of the Quilcene-Snow watershed, to avoid injury to existing water rights from future appropriations of water, and implement recommendations of the WRIA 17 Quilcene-Snow watershed planning unit. This rule sets instream flows, closes or seasonally closes subbasins to future withdrawals, establishes reserves of water for future use, specifies conditions of use for access to the reserves, and requires metering for all new withdrawals. This rule helps the Washington state department of ecology meet statutory obligations to manage waters for public use and for the protection of instream flows.

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

Adopted under notice filed as WSR 09-11-095 on May 18, 2009.

Changes Other than Editing from Proposed to Adopted Version: There are a number of changes from the proposed rule published with the CR-102 and the rule adopted and published with the CR-103. The changes were made in response to comments, as well as upon ecology's initiative. The changes made do not change the general subject matter or the intent of the rule as proposed.

A typographical error was corrected in the title.

WAC 173-517-010 Purpose and introduction.

In subsection (3) deleted last sentence that mentioned rainwater catchment provisions. The rainwater provisions in the proposed rule were deleted in response to publication of ecology's rainwater policy interpretive statement 1017. This policy states ecology's interpretation that the on-site storage and/or beneficial use of rooftop or guzzler collected rainwater is not subject to the permit process of chapter 90.03 RCW.

In subsection (4)(b) deleted language that discussed setting limits on future ground water withdrawals in coastal management areas. Ecology did not adopt WAC 173-517-130 of the proposed rule. Ecology chose to postpone rule making to address closures and water management requirements in the coastal management areas in light of recently issued Attorney General Opinion 2009 No. 6. Eliminating these provisions has no effect on remaining elements of the rule. More time is needed to assess management approaches for the coastal areas.

WAC 173-517-020 Authority and applicability.

In subsection (4) deleted the phrase "existing on the effective date of this chapter" to be consistent with other rules.

In subsection (4) added language clarifying the applicability of the rule to existing permit-exempt withdrawals. This clarification is consistent with original rule intent and was also made in response to comments.

WAC 173-517-030 Definitions.

In subsection (8) clarified the definition of hydraulically connected to say "between" ground water sources. This change was made in response to a comment from the Jamestown S'Klallam Tribe.

WAC 173-517-040 Compliance and enforcement.

No changes were made.

WAC 173-517-050 Appeals.

No changes were made.

WAC 173-517-060 Regulation review.

In subsection (3) changed "regularly" to "annually" for reviewing reserve quantities. This change was made in response to several comments requesting clarification of the review frequency.

WAC 173-517-070 Maps.

Deleted Map C which showed the locations of three streams in the coastal management areas. Ecology chose to postpone rule making to address closures and water management requirements in the coastal management areas in light of recently issued Attorney General Opinion 2009 No. 6. Eliminating these provisions has no effect on remaining elements of the rule. More time is needed to assess management approaches for the coastal areas.

WAC 173-517-080 Establishment of stream management units.

No changes were made.

WAC 173-517-090 Instream flows.

In subsection (3)(a) the word "on" was replaced with "before" making this provision more specific and consistent with rule intent. This change was made in response to comments.

WAC 173-517-100 Closures.

Deleted subsection (2) of this section, deleted reference to subsection (2) and renumbered remaining sections. The deleted language would have closed surface and ground water in coastal management areas. Ecology chose to postpone rule making to address closures and water management requirements in the coastal management areas in light of recently issued Attorney General Opinion 2009 No. 6. Eliminating these provisions has no effect on remaining elements of the rule. More time is needed to assess management approaches for the coastal areas.

WAC 173-517-110 Future new water use -- Generally.

In subsections (2), (3), and (3)(a) eliminated references to subsection WAC 173-517-100(2) which has been deleted.

In subsection (3)(b) eliminates reference to WAC 173-517-130, and instead refers to Map B of WAC 173-517-070 for designating coastal management areas. This change was made to maintain internal consistency in light of ecology's decision to not adopt WAC 173-517-130 of the proposed rule.

Language changes in subsection (4) to clarify submittal and approval of mitigation plans. These changes were made in response to comments from the Jamestown S'Klallam Tribe, American Rivers, and the Washington Environmental Council.

Deleted subsection (8) and edited introductory paragraph of WAC 173-517-110 for internal consistency. The rainwater provisions in the proposed rule were deleted in response to publication of ecology's rainwater policy interpretive statement 1017. This policy states ecology's interpretation that the on-site storage and/or beneficial use of rooftop or guzzler collected rainwater is not subject to the permit process of chapter 90.03 RCW.

WAC 173-517-120 Conservation standard.

Added language to subsection (1)(b) to clarify that the provisions of this rule may not be modified by county ordinance. The change was made in response to a comment from American Rivers and Washington Environmental Council.

Added language to subsection (2) clarifying that uses associated with a group domestic system may also mitigate for water use above the conservation standard. This change is consistent with original rule intent.

WAC 173-517-130 Designated coastal management areas.

Ecology chose to postpone rule making to address closures and water management requirements in the coastal management areas in light of recently issued Attorney General Opinion 2009 No. 6. Eliminating these provisions has no effect on remaining elements of the rule. More time is needed to assess management approaches for the coastal areas.

WAC 173-517-140 Maximum future allocations for interruptible use.

No changes to this section.

WAC 173-517-150 Reserves of water for future use.

Subtitles were added to subsections (4), (5), (6), (7), and (8) to aid in readability.

In subsections (5), (6), and (7) the "or" was replaced with "and" to clarify that all the listed uses are allowed in the named reserve management areas. This change is a grammatical correction and consistent with original intent.

In subsection (8) clarified the use allowed in the Chimacum reserve management area by adding reference to the applicable definition in WAC 173-517-030. This change provides clarification and is consistent with original intent.

In subsection (8)(a) modified language for internal consistency with clarification in subsection (8) of this section.

In subsection (8)(b) added clarifying language to state this provision applies "within the Chimacum subbasin." This language is consistent with the original intent.

In subsection (10) added reference to WAC 173-517-110 and modified language for consistency with WAC 173-517-110. The change clarifies the applicability of the provisions in section 173-517-110 and was made in response to a comment from the Jamestown S'Klallam Tribe.

WAC 173-517-160 Accounting for use under the reserves.

In subsection (5) modified language to allow any water to be credited to a reserve if a water user permanently ceases use. This change allows more flexibility for managing reserves and was made in response to a comment from Jefferson County.

In subsection (6) added an ecology commitment to publish a public notice about remaining quantities in the reserves. This chance [change] was made in response to comments received about WAC 173-517-060 Regulation review.

WAC 173-517-170 Lakes and ponds.

No change to this section.

WAC 173-517-180 Measuring water use.

Modified language to require "each" new appropriation to meter water use, and deleted the word "source" to clarify that meters may be required for each connection. This change was made in response to a comment from the department of commerce.

Add the word "or" to the last sentence to clarify reporting requirements.

WAC 173-517-190 Conveying stock water away from streams.

Ecology did not adopt WAC 173-517-190 of the proposed rule. This section of the proposed rule was not adopted because existing ecology policy number 1025, Conveying Stockwater Away from Streams to Protect Water Quality, contains the same provisions as the proposed rule language.

WAC 173-517-200 Future surface water withdrawals for environmental restoration.

No change to this section.

WAC 173-517-210 Out of subbasin water use.

No change to this section.

A final cost-benefit analysis is available by contacting Barbara Anderson, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6607, fax (360) 407-6574, e-mail btov461@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 19, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 19, Amended 0, Repealed 0.

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: November 30, 2009.

Ted Sturdevant

Director

OTS-2234.8

Chapter 173-517 WAC

WATER RESOURCES MANAGEMENT PROGRAM FOR THE QUILCENE-SNOW WATER RESOURCE INVENTORY AREA (WRIA 17)

PART A - GENERAL PROVISIONS
NEW SECTION
WAC 173-517-010   Purpose and Introduction.   (1) The purpose of this chapter is to retain rivers, streams, lakes and ponds in the Quilcene-Snow water resource inventory area (WRIA 17) with instream flows and levels necessary to protect and preserve wildlife, fish, stock water, scenic, aesthetic, recreation, water quality and other environmental values and navigational values.

(2) WRIA 17 is located on the northeastern Olympic Peninsula and includes portions of Jefferson and Clallam counties. This chapter excludes part of the Clallam County portion of WRIA 17.

(3) This chapter sets forth the department of ecology's (ecology) policies to guide the protection, use and management of WRIA 17 surface water and ground water resources. It establishes instream flows and closures, and sets forth a program for the administration of future water appropriation and use. For the Chimacum subbasin, where water availability is severely limited, a small amount of water is reserved for restricted out of stream use to provide a transition until alternative sources of water can be developed.

(4) This chapter designates two types of management areas for administering future water appropriation and use:

(a) Reserve management areas. This chapter establishes reserves of water within specified reserve management areas.

(b) Coastal management areas. This chapter designates coastal management areas.

(5) This chapter does not release anyone from complying with other relevant laws and rules.

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NEW SECTION
WAC 173-517-020   Authority and applicability.   (1) This chapter is adopted under the authority of the Water Resources Act of 1971 (chapter 90.54 RCW), Minimum Water Flows and Levels Act (chapter 90.22 RCW), Watershed Planning Act (chapter 90.82 RCW), Water code (chapter 90.03 RCW), Regulation of public ground waters (chapter 90.44 RCW) and the water resources management program rule (chapter 173-500 WAC).

(2) Except as provided in subsection (3) of this section, this chapter applies to the use and appropriation of:

(a) All surface waters within WRIA 17, including all streams, and their tributaries, that drain to salt water; and

(b) All ground water within WRIA 17, including ground water hydraulically connected to surface water bodies, as well as ground water that drains to salt water.

(3) The following portion of WRIA 17 located in Clallam County, as shown in Map B in WAC 173-517-070, will be addressed through future rule making and is excluded from coverage under this chapter:

Johnson Creek;

West Sequim Bay;

Dean Creek;

Jimmycomelately Creek;

Chicken Coop Creek; and

The portion of Miller Peninsula in Clallam County.

(4) This chapter shall not affect existing water rights, including perfected riparian rights, or other appropriative rights, unless otherwise provided for in the conditions of the water right in question. An existing permit-exempt withdrawal is not subject to the rule to the extent such withdrawal has been put to beneficial use on the subject property for the purpose of use in question.

(5) This chapter shall not affect federal or Indian reserved rights. The Jamestown S'Klallam, Port Gamble S'Klallam, Lower Elwha Klallam, and Skokomish Tribes reserve the right to claim a treaty-derived off-reservation instream flow right with senior priority. The extent of such rights can only be determined in other forums outside of this chapter.

(6) 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.

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NEW SECTION
WAC 173-517-030   Definitions.   For the purposes of this chapter, the following definitions apply. If these definitions differ from those in related rules, the definitions presented here shall apply for this chapter:

(1) "Allocation" means the designating of specific amounts of water.

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

(3) "Commercial agriculture" means the production of crops for sale, crops intended for widespread distribution (e.g., markets), and nonfood crops such as hay and lavender. Commercial agriculture includes livestock production and livestock grazing. Commercial agriculture does not include crops grown for household consumption (e.g., household vegetable gardens or fruit trees).

(4) "Consumptive use" means a beneficial use of water that diminishes the amount or quality of water in the water source.

(5) "Domestic use" means use of water associated with human health and welfare requirements, including water used for drinking, bathing, sanitary requirements, cooking, laundering and other incidental household uses, including potable domestic water requirements associated with commercial and industrial purposes.

(6) "Ecology" means the Washington state department of ecology.

(7) "Group domestic system" means domestic use of the ground water exemption for two or more residences.

(8) "Hydraulically connected" means saturated conditions exist that allow water to move between two or more sources of water, either between surface water and ground water or between ground water sources.

(9) "Individual user" means all uses on an individual parcel or adjoining parcels under common ownership that do not qualify as a group domestic system.

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

(11) "Interruptible use" means a use, authorized under a water right, which must cease diversion or withdrawal when stream flows fall below the instream flow levels established in this rule.

(12) "Mitigation plan" means a plan, submitted to and approved by ecology, to offset the impacts of a proposed consumptive use. A mitigation plan may address impacts to a stream, basin, reach, or other area, for an individual withdrawal or for multiple withdrawals in a subbasin.

(a) A mitigation plan must show that the proposed withdrawal with mitigation in place, will not:

Impair existing water rights, including instream flow rights;

Be detrimental to the public interest; or

Consume water from a closed source.

(b) The plan must include financial assurance, ensure mitigation measures for the duration of the water use and prohibit water provided for the purpose of mitigation from appropriation for any other purpose.

(c) The plan must include a monitoring and reporting plan, including a quality assurance/quality control plan.

(13) "Outdoor irrigation" means watering greenhouse or outdoor plants, lawns, or gardens.

(14) "Permit-exempt withdrawals" or "permit-exempt well" means a ground water withdrawal exempted from permit requirements under RCW 90.44.050, but otherwise subject to the surface and ground water statutes and other applicable laws, including this chapter.

(15) "Reserve" means a one-time, finite allocation of water for future appropriations.

(16) "Stream management unit" means a stream segment, reach, or tributary used to describe the part of the relevant stream to which a particular instream flow level applies.

(17) "Subbasin" means a reserve management area or coastal management area as shown on Map B in WAC 173-517-070.

(18) "Withdrawal" means the appropriation or use of ground water, or the diversion or use of surface water. Withdrawal includes both withdrawals under a water right permit and permit-exempt withdrawals.

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NEW SECTION
WAC 173-517-040   Compliance and enforcement.   (1) In accordance with RCW 90.03.605, to assist the public in complying with this chapter, ecology shall prepare and distribute technical and educational information regarding the scope and requirements of this chapter.

(2) When ecology determines that a violation has occurred, it shall:

(a) First attempt to achieve voluntary compliance. One method is to offer information and technical assistance to the person, in writing, showing one or more means to legally accomplish the person's purposes.

(b) If education and technical assistance do not achieve compliance, ecology may 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.

(3) Nothing in this section is intended to prevent ecology from taking immediate action to cause a violation to be ceased immediately if in the opinion of the department the nature of the violation is causing harm to other water rights or to public or tribal resources.

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NEW SECTION
WAC 173-517-050   Appeals.   All of ecology's final written decisions pertaining to permits, regulatory orders, and related decisions made pursuant to this chapter may be appealed to the pollution control hearings board in accordance with chapter 43.21B RCW.

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NEW SECTION
WAC 173-517-060   Regulation review.   (1) Ecology reserves the right to review and amend this rule as needed.

(2) Ecology, in consultation with the counties, the city of Port Townsend, Jefferson County PUD #1, tribal governments, other state agencies, and the WRIA 17 planning unit (if active), may initiate a review, and if necessary a modification through rule making, of this chapter as appropriate, including whenever:

Applicable statutory changes are enacted.

Significant new information becomes available.

Significant changes in conditions such as population growth trends, water service areas and ground water levels occur.

(3) Ecology, in consultation with the counties, Jefferson County PUD #1, tribal governments and the WRIA 17 planning unit (if active), will annually review the allocated and unallocated amounts for each reserve management area.

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NEW SECTION
WAC 173-517-070   Maps.   For the purpose of administering this chapter, two maps are provided. Map A shows the boundaries of the stream management units and the control points. Map B shows reserve management areas, coastal management areas, and the portion of WRIA 17 not covered by this chapter.

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PART B - INSTREAM FLOWS AND CLOSURES
NEW SECTION
WAC 173-517-080   Establishment of stream management units.   Ecology hereby establishes the following stream management units, with accompanying control points. A control point is a designated location on a stream used to set and measure instream flow levels. Each control point location is identified by estimated river mile and approximate latitude and longitude in Table 1. The control points and boundaries of the stream management units are shown on Map A in WAC 173-517-070.


Table 1
Stream Management Unit Information

Stream Management Unit Name Control Point by River Mile (RM);

Latitude North (Lat) and Longitude West (Long)

Stream Management Reach
Big Quilcene River RM 0.4

Lat 47 49' 07" N,

Long 122 52' 17" W

From mouth to headwaters, including tributaries.
Chimacum Creek RM 0.3

Lat 48 03' 00" N,

Long 122 47' 07" W

From mouth to headwaters, including tributaries.
Donovan Creek RM 0.4

Lat 47 49' 58" N,

Long 122 51' 43" W

From mouth to headwaters, including tributaries.
Howe Creek RM 0.5

Lat 47 52' 43" N,

Long 122 55' 24" W

From mouth to headwaters, including tributaries.
Leland Creek RM 0.1

Lat 47 50' 18" N,

Long 122 53' 10" W

From mouth to headwaters, including tributaries.
Little Quilcene River RM 0.8

Lat 47 49' 48" N,

Long 122 52' 30" W

From mouth to headwaters, including tributaries except Leland and Howe creeks.
Ludlow Creek RM 0.5

Lat 47 55' 00" N,

Long 122 43' 00" W

From mouth to headwaters, including tributaries.
Piddling Creek #17.0200 RM 0.2

Lat 47 57' 27" N,

Long 122 41' 54" W

From mouth to headwaters, including tributaries.
Salmon Creek RM 0.8

Lat 47 58' 49" N,

Long 122 53' 49" W

From mouth to headwaters, including tributaries.
Snow Creek RM 0.4

Lat 47 59' 02" N,

Long 122 53' 12" W

From mouth to headwaters, including tributaries.
Spencer Creek RM 0.0

Lat 47 44' 45" N,

Long 122 52' 33" W

From mouth to headwaters, including tributaries.
Tarboo Creek RM 0.8

Lat 47 52' 08" N,

Long 122 49' 03" W

From mouth to headwaters, including tributaries.
Thorndyke Creek RM 1.2

Lat 47 49' 24" N,

Long 122 44' 23" W

From mouth to headwaters, including tributaries.

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NEW SECTION
WAC 173-517-090   Instream flows.   (1) Instream flows established in this chapter are flow levels which protect and preserve wildlife, fish, stock water, scenic, aesthetic, recreation, water quality and other environmental values, and navigational values.

(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.

(3) Instream flows will 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 instream flows:

(a) Water rights existing before the effective date of this chapter as explained in WAC 173-517-020(4).

(b) Water rights appropriated from the reserves of water established in WAC 173-517-150.

(c) Future withdrawals for environmental restoration purposes under WAC 173-517-200, unless included as a permit condition.

(4) Instream flows are expressed in cubic feet per second (cfs), and measured at the control points identified in WAC 173-517-080.

(5) Instream flows are established in Tables 2 through 4 below, for the stream management units identified in WAC 173-517-080.


Table 2
Instream Flows (in cfs) for Big and Little Quilcene Rivers, with Ecology Gauge Number and River Mile (RM)

Month Big Quilcene River Ecology Gauge #17A060 RM 0.4 Little Quilcene River Ecology Gauge #17D060 RM 0.8
January 120 61
February 120 61
March 190 100
April 190 100
May 190 92
June 190 66
July 190 66
August 167 27
September 94 30
October 180 48
November 120 61
December 120 61

Table 3
Instream Flows (in cfs) for Named Creeks with Ecology Stream Gauges
(including gauge number and River Mile (RM))

Month Chimacum Creek Ecology Gauge #17B050

RM 0.3

Salmon Creek Ecology Gauge #17F060

RM 0.8

Snow Creek Ecology Gauge #17E060

RM 0.4

Tarboo Creek Ecology Gauge #17G060

RM 0.8

Thorndyke Creek Ecology Gauge #17H060

RM 1.2

January 25 21 35 20 24
February 25 21 35 20 24
March 46 40 50 25 45
April 46 35 50 16 45
May 32 26 50 8 30
June 10 26 35 8 30
July 10 9 17 8 12
August 10 9 15 8 12
September 17 9 20 8 12
October 20 12 35 8 12
November 25 21 35 20 24
December 25 21 35 20 24

Table 4
Instream Flows (in cfs) for Other Named Creeks (including River Mile (RM))

Month Donovan Creek

RM 0.4

Howe Creek

RM 0.5

Leland Creek

RM 0.1

Ludlow Creek

RM 0.5

Piddling Creek

RM 0.2

Spencer Creek

RM 0.0

January 15.5 17.1 33.1 32.1 5.8 13.3
February 10.2 11.3 21.8 21.2 3.8 8.8
March 29.8 32.6 58.3 56.8 12.4 26.1
April 29.8 32.6 58.3 56.8 12.4 26.1
May 19.7 21.5 38.5 37.9 8.2 17.2
June 19.7 21.5 38.5 37.9 8.2 17.2
July 6.1 6.8 13.9 13.5 2.1 5.2
August 6.1 6.8 13.9 13.5 2.1 5.2
September 6.1 6.8 13.9 13.5 2.1 5.2
October 6.1 6.8 13.9 13.5 2.1 5.2
November 15.5 17.1 33.1 32.1 5.8 13.3
December 15.5 17.1 33.1 32.1 5.8 13.3

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NEW SECTION
WAC 173-517-100   Closures.   (1) Based on past and current low flows, ecology has determined that no waters are reliably available for new consumptive uses from the streams and tributaries in WRIA 17 listed in Table 5, with the exception of certain times of year in the Big Quilcene River and Chimacum Creek. Therefore, all surface waters listed in Table 5 are closed to any further consumptive appropriation, except as provided in WAC 173-517-110.

Ecology finds that there is some water available above the instream flows at specific locations and times of year in the Big Quilcene River and Chimacum Creek that could be appropriated for storage or other projects that do not require year-round water supplies. These withdrawals require a water right permit from ecology and are subject to the seasonal restrictions in Table 5, the instream flows established in WAC 173-517-090, and the allocation limits defined in WAC 173-517-140.

(2) Closures in subsection (1) of this section include future withdrawals from ground water that would have an adverse impact on closed surface water, including permit-exempt withdrawals.

(3) Exceptions to the closures are provided in WAC 173-517-110.


Table 5
Surface Water Closures

Stream Management Unit Name Affected Reach Timing
Big Quilcene River From mouth to headwaters, including tributaries. June 16 to November 15
Chimacum Creek From mouth to headwaters, including tributaries. March 1 to November 30
Donovan Creek From mouth to headwaters, including tributaries. All Year
Howe Creek From mouth to headwaters, including tributaries. All Year
Leland Creek From mouth to headwaters, including tributaries. All Year
Little Quilcene River From mouth to headwaters, including tributaries except Leland and Howe creeks. All Year
Ludlow Creek From mouth to headwaters, including tributaries. All Year
Piddling Creek #17.0200 From mouth to headwaters, including tributaries. All Year
Salmon Creek From mouth to headwaters, including tributaries. All Year
Snow Creek From mouth to headwaters, including tributaries. All Year
Spencer Creek From mouth to headwaters, including tributaries. All Year
Tarboo Creek From mouth to headwaters, including tributaries. All Year
Thorndyke Creek From mouth to headwaters, including tributaries. All Year

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PART C - FUTURE NEW WATER USE
NEW SECTION
WAC 173-517-110   Future new water use -- Generally.   A new surface or ground water appropriation (including any permit-exempt ground water withdrawal) or other new use may occur only if consistent with the surface and ground water statutes and the applicable requirements of law and if any one of the following seven conditions (subsections (1) through (7) of this section) apply:

(1) The proposed use is nonconsumptive.

(2) The proposed surface water appropriation would not have an adverse effect on any of the surface waters closed in WAC 173-517-100(1).

(3) The proposed ground water withdrawal is located where it would not adversely affect any of the surface waters closed in WAC 173-517-100(1), by meeting either condition (a) or (b) of this subsection:

(a) The person or entity seeking to commence a proposed ground water appropriation shows, through scientifically sound studies and technical analysis, that the ground water use would not have an adverse effect on any of the surface waters closed in WAC 173-517-100(1), and receives approval of a water right.

(b) The proposed ground water appropriation occurs in a coastal management area designated in Map B of WAC 173-517-070.

(4) The person or entity seeking to commence the new appropriation submits a mitigation plan as defined in WAC 173-517-030(12), and such plan is approved by ecology. If monitoring shows the mitigation is not effective, use of water under the appropriation shall then be subject to the instream flows. In the case of a closed basin, the use shall cease until an effective mitigation plan, approved by ecology, is put in place.

(5) The proposed water appropriation qualifies as an interruptible use and meets the criteria in WAC 173-517-140.

(6) The proposed water appropriation qualifies for the reserves established and conditioned in WAC 173-517-150.

(7) The proposed water appropriation is for an environmental restoration project and meets the criteria in WAC 173-517-200.

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NEW SECTION
WAC 173-517-120   Conservation standard.   Ecology has determined that a conservation standard for new permit-exempt withdrawals authorized under RCW 90.44.050 is necessary to conserve available water and protect instream resources.

(1) For the purposes of this chapter the conservation standard for permit-exempt withdrawals is defined as follows:

(a) Water use from a permit-exempt well must be consistent with Jefferson County or Clallam County code, as applicable, and other applicable laws, including the statute on permit exemptions, RCW 90.44.050, and this rule.

(b) A permit-exempt well serving an individual user shall not exceed a maximum of 500 gpd or an annual average more than 350 gpd, for all permit-exempt uses authorized under RCW 90.44.050.

(c) A well serving a group domestic system shall not exceed a maximum use of 500 gpd or an annual average more than 350 gpd, for each residence, and shall not exceed a total use of 5,000 gpd for the group. The design and construction of group domestic systems must be consistent with applicable state department of health requirements and applicable Jefferson County or Clallam County requirements.

(2) New permit-exempt well use exceeding 500 gpd for an individual use, including individual uses associated with a group domestic withdrawal, may occur provided all of the following are met:

(a) Water use greater than 500 gpd must be offset through implementation of an approved mitigation plan as described in WAC 173-517-030(12). If monitoring of a mitigation plan shows the mitigation is not effective, departmental approval of the mitigation plan shall be suspended and the water use shall cease until the department approves a new or revised mitigation plan; and

(b) Total water use shall not exceed 5,000 gpd.

(3) New permit-exempt withdrawals must measure water use in accordance with WAC 173-517-180.

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NEW SECTION
WAC 173-517-140   Maximum future allocations for interruptible use.   (1) Ecology finds there may be water available in excess of instream flows at certain times of year, which may be appropriated for interruptible uses. This water is only available from the Big Quilcene River from November 16 to June 15 and from Chimacum Creek from December 1 to February 29.

(2) A person or entity seeking a new interruptible appropriation must provide assurances that any negative effects on surface water that may result from withdrawals will be limited to the above locations and times.

(3) In no case shall total cumulative appropriations exceed the allocation limit specified in Table 7 for each river. However, ecology may lower these allocation limits on a case-by-case basis, upon consultation with the state department of fish and wildlife and tribes, whenever more protection of habitat-forming functions is needed.

(4) Interruptible uses must not impair existing water rights and instream flows set in WAC 173-517-090.


Table 7
Open Period and Allocation Limit

Water Source Open Period Allocation Limit in Cubic Feet Per Second (cfs) and Gallons Per Day (gpd)
Big Quilcene River Open Period: November 16 to June 15 Allocation Limit: 15 cfs; 9.69 million gpd
Chimacum Creek Open Period: December 1 to February 29 Allocation Limit: 3 cfs; 1.94 million gpd

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NEW SECTION
WAC 173-517-150   Reserves of water for future use.   (1) Ecology has weighed the public interest that supports reserving a limited amount of water for new consumptive uses against the potential for negative impact to instream resources. For the subbasins discussed in this section ecology finds that the public interest advanced by limited reserves clearly overrides the potential for small negative impact to instream resources.

Based on this finding, ecology hereby allocates an amount of water for each reserve management area as indicated in Table 8. These reserves of water are not subject to the instream flows established in WAC 173-517-090 or closures established in WAC 173-517-100. The priority date of an appropriation from a reserve is the effective date of this chapter.

These reserves are available to a user only if the conditions set forth in this section are met, as well as any applicable requirements of law, including, but not limited to, all water resource laws and regulations.

(2) These reserves shall be available for use only after the county with jurisdiction commits to ecology in writing confirming that determinations of adequate potable water for building permits and subdivision approvals will be consistent with this chapter.

(3) Permit-exempt well withdrawals from reserves may not occur where a public water supplier can provide a connection in a timely and reasonable manner. Determinations of what it means to provide water service in a timely and reasonable manner shall be consistent with public water system plans, if applicable, and applicable state and local laws including, but not limited to, Jefferson County or Clallam County code.

(4) Donovan, Ludlow, Piddling, Spencer, and Tarboo subbasins. Withdrawals from the reserves of water in Donovan, Ludlow, Piddling, Spencer, and Tarboo reserve management areas shall be limited to permit-exempt well use consistent with the conservation standard defined in WAC 173-517-120.

(5) Salmon and Snow subbasins. Withdrawals from the reserves of water in Salmon and Snow reserve management areas shall be limited to permit-exempt well use consistent with the conservation standard defined in WAC 173-517-120, and the following: Up to 5,000 gallons per day of the Salmon Creek reserve, and up to 3,000 gallons per day of the Snow Creek reserve may be used for a permit-exempt withdrawal for commercial agriculture.

(a) Each user must register with ecology or its designee before water use for commercial irrigation begins.

(b) If the commercial agricultural use ceases, then the balance of the water returns to the reserve and use of the well shall be consistent with the conservation standard defined in WAC 173-517-120.

(6) Little Quilcene and Thorndyke subbasins. Withdrawals from the reserves of water in Little Quilcene (includes Leland and Howe creeks), and Thorndyke reserve management areas shall be limited to permit-exempt well use consistent with the conservation standard defined in WAC 173-517-120, and the uses listed below through approval of a water right permit subject to a public interest evaluation that takes into account water availability for future domestic use in the subbasin:

(a) Municipal or community domestic water supply with domestic hookups consistent with the conservation standard defined in WAC 173-517-120.

(b) Agricultural irrigation.

(c) Industrial.

(7) Big Quilcene subbasin. Withdrawals from the reserve of water in the Big Quilcene reserve management area shall be limited to permit-exempt well use consistent with the conservation standard defined in WAC 173-517-120, and the following:

(a) Permit exempt withdrawal for commercial agriculture.

(i) Each user is limited to 5,000 gpd as a permit-exempt well under RCW 90.44.050.

(ii) Each user must register with ecology or its designee before water use for commercial irrigation begins.

(iii) If the commercial agricultural use ceases, then the balance of the water returns to the reserve and use of the well shall be consistent with the conservation standard defined in WAC 173-517-120.

(b) The uses listed below through approval of a water right permit subject to a public interest evaluation that takes into account water availability for future domestic use in the subbasin:

(i) Municipal or community domestic water supply with domestic hookups consistent with the conservation standard defined in WAC 173-517-120.

(ii) Agricultural irrigation.

(iii) Industrial.

(8) Chimacum subbasin. Future withdrawals from the reserve of water in the Chimacum reserve management area shall be limited to domestic permit-exempt well use as defined in WAC 173-517-030(5), and such use shall not include outdoor irrigation, except for the following:

(a) When alternative water supply or a mitigation strategy is approved by ecology and implemented, this limitation to domestic use for the Chimacum basin no longer applies and permit-exempt well use consistent with the conservation standard defined in WAC 173-517-120 is allowed.

(b) If the report for U.S. Geological Survey ground water model currently under construction for the Chimacum Creek subbasin identifies specific areas within the Chimacum subbasin where new well pumping will not have any effect on creek flows, withdrawals from new wells in those areas will not be deducted from the reserve and will not be subject to the restriction on outdoor irrigation. Instead, use of new permit-exempt wells will be regulated by the statutory permit exemption found in RCW 90.44.050. If such a change occurs, ecology shall notify the public of these findings through publication of a Chimacum Creek Water Supply Bulletin.

(9) The place of use of water taken from the reserve is limited to the reserve management area from which it is withdrawn unless ecology, in consultation with the applicable county, department of fish and wildlife, and tribes allow specific transfers between subbasins. An applicant for a water right that includes out of subbasin water use must comply with WAC 173-517-210.

(10) When each reserve is fully appropriated, the applicable reserve management areas are hereby closed to any further consumptive appropriation. Under such circumstances water for new uses may be available in accordance with WAC 173-517-110, such as:

Mitigation is provided;

The proposed use is nonconsumptive;

Alternative sources of water are available; or

An existing water right can be changed or transferred.


Table 8
Reserve Management Areas, Reserve Quantities and Allowed Uses

Reserve Management Area Water Source (including tributaries) Reserve Quantity Maximum Average Daily Use in Gallons (gpd) Allowed Uses of Reserve*
Big Quilcene 200,400 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Permit-exempt withdrawals for agriculture
Water right permits subject to public interest test for domestic availability
Chimacum 1,940 gpd Permit-exempt withdrawals for domestic use, no outdoor irrigation
Donovan 2,326 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Little Quilcene (includes Leland and Howe creeks) 38,800 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Water right permits subject to public interest test for domestic availability
Ludlow 7,830 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Piddling 1,845 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Salmon 9,050 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Permit-exempt withdrawals for agriculture
Snow 4,140 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Permit-exempt withdrawals for agriculture
Spencer 2,200 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Tarboo 7,110 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Thorndyke 31,670 gpd Permit-exempt uses under the conservation standard per WAC 173-517-120
Water right permits subject to public interest test for domestic availability

*This table lists the types of allowed uses. See the text of the rule for specific requirements for each use.

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NEW SECTION
WAC 173-517-160   Accounting for use under the reserves.   (1) Ecology shall maintain a record of all appropriations from the reserves.

(2) For an appropriation under a permit, ecology will account for water use under the reserve based on authorized quantities under water right permits or certificates, and metering data.

(3) For permit-exempt ground water appropriations from reserves other than Chimacum subbasin, ecology will deduct a standard amount of 250 gpd for each single domestic use. For a permit-exempt agricultural use, ecology will deduct 5,000 gpd for the Big Quilcene and Salmon Creek subbasins and 3,000 gpd for the Snow Creek subbasin. The amounts deducted from the reserves may be adjusted periodically by ecology, to reflect actual use during low flow conditions based on metering data or other measurements.

(4) For permit-exempt ground water appropriations from the Chimacum reserve, ecology will deduct a standard amount of 13 gpd for each single domestic use.

(5) If a water user permanently ceases use of water, ecology may credit the water to the appropriate reserve, upon demonstration, through written certification, that the well or surface water diversion has been decommissioned.

(6) Ecology shall notify the county (or counties) with jurisdiction, and publish a public notice, when it determines that fifty percent, seventy-five percent, and one hundred percent, respectively, of a reserve is appropriated.

(7) If a new appropriation, located in a subbasin with a reserve, is fully offset through implementation of an approved mitigation plan as described in WAC 173-517-030(12), then ecology will not deduct the amount of new water use from the reserve.

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NEW SECTION
WAC 173-517-170   Lakes and ponds.   RCW 90.54.020 (3)(a) requires, in part, that the quality of the natural environment shall be protected, and where possible, enhanced, and that lakes and ponds shall be retained substantially in their natural condition.

Any withdrawal from a lake or pond in WRIA 17 requires a water right permit from ecology, and must be consistent with the provisions of this chapter.

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NEW SECTION
WAC 173-517-180   Measuring water use.   Each future new appropriation of ground water or surface water, including permit-exempt well use, is required to install and maintain a measuring device (water meter) meeting specifications provided by ecology. The user must report to ecology, by December 31 of each year, meter readings demonstrating water use for the previous water year, October 1 through September 30, or as directed by ecology.

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NEW SECTION
WAC 173-517-200   Future surface water withdrawals for environmental restoration.   Ecology finds that the public interest advanced by future withdrawals for environmental restoration projects (ERPs), as defined and conditioned in this section, clearly overrides the minimal negative impacts on instream flows.

(1) Ecology may approve a future withdrawal for an ERP only if it meets all the following:

(a) The proposed water use is for a bypass flow for salmonid habitat restoration, or for riparian planting, 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; and

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

(2) Ecology, in consultation with the department of fish and wildlife and tribes, 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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NEW SECTION
WAC 173-517-210   Out of subbasin water use.   (1) Ecology recognizes that rainfall patterns, and the rain shadow effect of the Olympic Mountains, affect water availability in WRIA 17. In addition, population growth patterns in WRIA 17 have historically shown highest growth in areas with less rainfall. For these reasons, ecology recognizes that future water right applicants may request using water from one subbasin in a different subbasin, and that such out of subbasin water use may have lasting effects on the community. Such use may occur only if consistent with all applicable requirements of state and federal law.

(2) An applicant for a water right that includes out of subbasin water use shall:

(a) Provide the public an opportunity to review and comment on the proposed application. The applicant shall:

Advertise and convene a public meeting to explain the proposal; and

Allow for public comment on the potential for the proposed use to be harmful to the public interest.

(b) The applicant shall provide ecology a report which identifies:

Alternatives examined;

Any alternatives/modifications that the applicant has rejected and why; and

Any alternatives/modifications that the applicant accepts and, if relevant, have been made.

(c) The report in (b) of this subsection shall also summarize the comments received through the public meeting in (a) of this subsection on the potential for the proposed use to be harmful to the public interest.

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Washington State Code Reviser's Office