Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-06-114.

     Title of Rule and Other Identifying Information: Chapter 173-526 WAC, Water resources management program for the Cowlitz watershed (WRIA 26).

     Hearing Location(s): Cowlitz County Training Center, 1900 1st Avenue, Longview, WA, on May 26, 2010, at 7:00 p.m.; and at the Morton School District, Lecture Room, 152 Westlake Avenue, Morton, WA, on May 27, 2010, at 7:00 p.m.

     Date of Intended Adoption: July 15, 2010.

     Submit Written Comments to: Travis Burns, Department of Ecology, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, (360) 407-7207, e-mail tbur461@ecy.wa.gov, fax (360) 407-6574, by June 4, 2010, preferably via e-mail.

     Assistance for Persons with Disabilities: Contact Judy Beitel by May 21, 2010, TTY (800) 833-6388 or (360) 407-6878. 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: In order to better manage water resources in WRIA 25 [26], the local watershed planning unit recommended that ecology adopt, in rule, a water resource management strategy for the basin. Recommendations were approved by Wahkiakum, Lewis, Cowlitz and Skamania county commissioners in July 2006.

     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;

     •     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, 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, Southwest 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. The 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.

     Background/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 new year-round withdrawals.

     •     Defining seasonal interruptible water supplies from larger streams (Cowlitz, Coweeman, Grays, and Elochoman rivers).

     •     Creating water reservations to provide a reliable water supply for the twenty-year projected population growth in closed subbasins.

     •     Specifying conditions to access the reservations so as to benefit stream resources and better manage limited water supply.

     The proposed instream flows are designed to protect stream habitat. This makes less water available for future uses during low-flow portions of the year (May through November). To provide a reliable, year-round supply of water for new future uses, it is necessary to reserve water that will 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).

     Without reservations, 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 2030. Future users from the reservations could obtain their water from either groundwater or surface water sources.

     Analysis of Compliance Costs for Washington Businesses: We have assessed the proposed rules' impacts 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 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 173-525 and 173-526 WAC will create "instream flows." Instream flows are water rights for instream resources and provide protection 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 25 and 26 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 groundwater would be available to certain users, including:

     •     City and 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 issuing 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 reservations. 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 through November). 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.

     Groundwater Permits: As with surface water, ecology will also make decisions on groundwater right applications similar to the baseline, except for uses from the proposed reservations. New water right permits for groundwater in hydraulic continuity with rivers and streams in WRIAs 25 and 26 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 groundwater permit exemption². Potential groundwater 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 groundwater permitting does not significantly affect businesses. However, the proposed rules reduce the administrative costs of groundwater permitting. The rules close certain groundwater areas, making case-by-case hydraulic connection determinations unnecessary.

     Permit-Exempt Groundwater: Under the proposed rules, new users can gain an uninterruptible permit-exempt water use under the reservation. Permit-exempt users currently withdrawal [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 25 and 26. Nonetheless, they remain susceptible to future curtailment if withdrawals result in impairment of a senior water right.

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

     Reservations of Water: The reservations of water 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 WRIAs 25 and 26: 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 affected businesses. An exception to this would be businesses that use 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 provide a reliable water supply for new uses during low flow periods. This will slightly reduce the amount of water in the river and could impact instream 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 shows 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 businesses 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: The proposed rules add no reporting or record-keeping requirements for small businesses.

     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: We expect no other compliance requirements from the proposed rules.

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

     •     The impacts to instream users would be specific to the firm, but is unlikely to be significant since few firms are dependent on instream flows³.

     •     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 being unavailable during low flow periods is damaging to any business that needs a reliable supply for its own use or 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, businesses would need to obtain water through purchase, lease, transfers, or on-site storage. On-site storage for a low flow period costs about $0.75 per gallon for small water systems⁴. 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 access reliable water supplies more easily. 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, 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. The rules identify various water purveyors and permit-exempt well users as qualifying for the reservations. Except for select businesses that will be served by a permit-exempt well, small businesses cannot access the reservations directly.

     Conclusions: No businesses are required to access the reservations. Only those businesses pursuing a new water right will be subject to conditions of the rules, and they are unlikely to experience a significant effect. Ecology was unable to determine any costs to small businesses from these proposed rules. Businesses of all sizes that qualify to use the reservation, directly or indirectly through a water purveyor, 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 of the Rules 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, [a] small business seeking reservation water through a permit-exempt well may have hypothetical advantages over a larger business with needs too large to be satisfied through a permit-exempt well.

     Small Business Involvement in Developing the Proposed Rules: The proposed rules have been developed as an outcome of the Grays/Elochoman and Cowlitz watershed planning process (WRIAs 25 and 26). This was an open process allowing for all entities to comment and take part as the project proceeded. Members in the planning unit included small businesses and organizations representing small businesses. Ecology will also hold public hearings after the filing of the CR-102s to allow small businesses to provide further input.

     The Standard Industrial Codes (SIC) Codes of Potentially 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 SIC codes for existing developable properties in the Grays-Elochoman and Cowlitz basins⁵. This serves as a representative sample of potential future businesses that may be affected.

     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:

     ²In 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).

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

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

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

     ⁶Ecology has used 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.

     ⁷http://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/ge_cowlitz.html or Barbara Anderson, Department of Ecology, 300 Desmond Drive S.E., Lacey, WA 98504, phone (360) 407-6607, fax (360) 407-7162, e-mail btov461@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/ge_cowlitz.html or Barbara Anderson, Department of Ecology, 300 Desmond Drive S.E., Lacey, WA 98504, phone (360) 407-6607, fax (360) 407-7162, e-mail btov461@ecy.wa.gov.

April 19, 2010

Polly Zehm

Deputy Director

OTS-3059.4

GENERAL
NEW SECTION
WAC 173-526-010   Authority, purpose and applicability.   (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 groundwaters (chapter 90.44 RCW), RCW 43.21A.064(9), and 43.21A.080.

     (2) This chapter shall not affect existing water rights, including perfected riparian rights, or other appropriative rights, unless otherwise stated in the conditions of the water right in question. An existing permit-exempt withdrawal is not subject to the rule to the extent it has been put to beneficial use on the subject property for the purpose of use in question. This chapter shall 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) Ecology reserves the right to require new and existing water users to install, maintain, and report data from a measuring device (water meter) as indicated in chapter 173-173 WAC.

     (5) The Grays-Elochoman and Cowlitz watershed management plan (plan) recommendations were approved in 2006 by the Grays-Elochoman and Cowlitz planning unit (planning unit) in accord with RCW 90.82.130. The planning unit is a group made up of Lewis, Wahkiakum, Cowlitz, and Skamania 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 Cowlitz watershed. Ecology shall rely upon the plan as a primary consideration in determining the public interest related to such decisions, including this rule adoption.

     (6) 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.

     "Community water supplier" means an entity that supplies water for fifteen or more residential service connections or for providing residential use of water for a nonresidential population that is, on average, at least twenty-five people for at least sixty days a year.

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

     "Cubic feet per second (cfs)" means a rate of flow commonly measured or calculated in streams or rivers. One "cfs" is equal to 7.48 gallons of water flowing a distance of one foot in one second.

     "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, flood plain flows, and riparian habitat.

     "Habitat-related action" means improving desirable riparian, stream, wetland, or flood plain 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 periodic or seasonal withdrawals 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 173-526-060.

     "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.

     "Overall stream flow depletion" means the depletion of water from a subbasin without accounting for offsetting actions, as required under WAC 173-526-100(3).

     "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.

     "Planning unit" means the Grays-Elochoman and Cowlitz watershed planning unit, established under chapter 90.82 RCW, and all successors, formally designated by the Grays-Elochoman and Cowlitz 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.

     "Reservation" means a one time, finite allocation of water for future beneficial uses. For the purposes of this chapter, the reservation is not subject to instream flows set in WAC 173-526-060, nor to closures set in WAC 173-526-070. The reservation is senior to the instream flow water rights set in WAC 173-526-060.

     "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 donating a water right to the trust water right program under chapter 90.42 RCW.

     "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 Grays-Elochoman and Cowlitz watershed management plan, adopted on July 21, 2006, by the Cowlitz, Lewis, Skamania, and Wahkiakum 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:

     (a) Ecology shall 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 173-526-050   Stream management control points.   Ecology hereby establishes the following stream management control points shown in Table I. Management point locations are shown in WAC 173-526-030.

Table I
Stream Management Control Point Information

Stream Management Point Name	Control Station by River Mile (RM); Latitude (Lat.), Longitude (Long.)
Cedar Creek (at Highway 505 crossing)	RM 3.9; 46°25'47"N, 122°42'34"W
Lacamas Creek (at Highway 506 bridge)	RM 0.3; 46°24'42"N, 122°55'34"W
Leckler Creek (at Hazel Dell Road)	RM 0.5; 46°12'19"N, 122°55'1"W
Mill Creek (at Cowlitz Salmon Hatchery)	RM 0.0; 46°30'58"N, 122°38'15"W
Olequa Creek (at Coma/Kollock Road bridge)	RM 6.5; 46°25'47"N, 122°58'9"W
Ostrander Creek (at Ostrander Road)	RM 0.6; 46°11'41"N, 122°53'17"W
Salmon Creek (at Jackson Highway)	RM 1.7; 46°25'23"N, 122°50'24"W
Tilton River (above Bear Canyon)	RM 7.1; 46°35'43"N, 122°27'30"W
Toutle River (at Tower Road)	RM 6.5; 46°20'54"N, 122°50'33"W
Winston Creek (at Hadaller Road)	RM 0.2; 46°29'55"N, 122°33'12"W
Cowlitz River (just upstream of Toutle River)	RM 20.1; 46°19'23"N, 122°55'14"W
Coweeman River (at ecology stream gage)	RM 7.5; 46°7'41"N, 122°50'18"W
Owl Creek (at old Pacific Hwy crossing)	RM 1.0; 46°5'3"N, 122°52'11"W

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     (2) Instream flows established in this chapter are water rights, which protect instream values and functions from future 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 put to beneficial use 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 put to beneficial use before the effective date of this chapter, unless stated in the conditions of the water right or change authorization.

     (b) Water rights appropriated from the reservation of water established in WAC 173-526-100.

     (c) Water rights for environmental restoration purposes under WAC 173-526-120, 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 173-526-050. Stream management points apply to stream reaches as follows:

     (a) Instream flows apply to all stream reaches that contribute to flow at stream management control points, as shown in Table II of this section;

     (b) For reaches that are downstream of all management points, the flows established for the nearest upstream management control point shall apply; and

     (c) If a point of withdrawal is downstream of the confluence of two or more branches, each having a designated management point, both management points shall apply to that withdrawal. However, if a withdrawal does not affect a stream reach located upstream of Mayfield Dam, none of the control points located upstream of Mayfield Dam would apply.

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

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Table III
Surface Water Closures

Subbasin Name*	Affected Reach
Lower Cowlitz River	Cowlitz River from RM 6.7 (46°10'10"N, 122°54'50"W) to Mayfield Dam (46°30'11"N, 122°35'17"W), including tributaries.
Middle Cowlitz River (Mayfield Dam)	Frost Creek from mouth (46°30'1"N, 122°11'1"W) to headwaters, including tributaries.
	Sulphur Creek from mouth (46°29'54"N, 122°23'43"W) to headwaters, including tributaries.
	Rainy Creek from mouth (46°29'51"N, 122°10'20"W) to headwaters, including tributaries.
Upper Cowlitz River	Cowlitz River from confluence with Cispus River (46°28'33"N, 122°5'43"W) to headwaters, including tributaries.
Cispus River	Cispus River from confluence with Cowlitz River (46°28'33"N, 122°5'43"W) to headwaters, including tributaries.
Tilton River	Tilton River from mouth at Mayfield Lake (46°34'35"N, 122°31'18"W) to headwaters, including tributaries.
Toutle River	Toutle River from confluence with Cowlitz River (46°18'34"N, 122°55'03"W) to headwaters, including tributaries.
Coweeman River	Coweeman River from RM 3.5 (46°08'31"N, 122°53'00"W)

*	Subbasin boundaries are shown in WAC 173-526-030, 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 173-526-080.

     (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 173-526-080   Future water rights, generally.   A new surface or ground water appropriation (including any permit-exempt 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 diversion is not located on any of the surface waters closed in WAC 173-526-070, Table III.

     (3) The proposed ground water withdrawal is located where it would not affect any of the surface waters closed in WAC 173-526-070, Table III. A person or entity seeking to commence such a withdrawal must show, through scientifically sound studies and technical analysis, that the proposed withdrawal would not affect any of the closed surface waters identified in WAC 173-526-070, Table III.

     (4) The person or entity seeking to commence the new appropriation submits a scientifically sound mitigation plan, approved by ecology. A mitigation plan shall be approved if the proponent can demonstrate to ecology's satisfaction that when the mitigation is implemented the proposed withdrawal(s) will not impair senior water rights, including instream flow rights, adversely impact instream resources, or diminish water quality. A mitigation plan can be submitted to mitigate for an individual withdrawal or to mitigate for multiple withdrawals in a defined region.

     An approved mitigation plan shall include a monitoring and reporting plan. It shall also include conditions that the plan be implemented as long as the associated water right is used and that any water provided for mitigation purposes be prohibited from being applied to any other purpose. If monitoring of a mitigation plan shows the mitigation is not effective, ecology's approval of the mitigation plan shall be suspended and the water use shall cease until ecology approves a new or revised mitigation plan.

     (5) The proposed water use qualifies as an interruptible use as defined in WAC 173-526-020, and meets the criteria in WAC 173-526-090.

     (6) The proposed water use qualifies for the reservation established and as conditioned in WAC 173-526-100.

     (7) The proposed use is for an environmental restoration project and meets the criteria in WAC 173-526-120.

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     (2) Prior to commencing use, the person or entity seeking a new interruptible appropriation must demonstrate a seasonal need and provide assurances that any effects on surface water that may result from withdrawals will be limited to the periods and locations specified in Table IV.

     (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 the values indicated in Table IV as specified for each water source. However, ecology may lower these allocation limits 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 173-526-060.

Table IV
     Interruptible uses - periods and limits on future allocation

Water Source Name	Period Available      (date)	Allocation Limit*      (cubic feet per second)
Cowlitz River	July 1 to August 15	357
	November 16 to February 29	832
Coweeman River	November 16 to May 15	50

*	Due to case-by-case determinations of flow for habitat forming function needs, the maximum allocation may be less.

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     (2) Based on this finding, ecology hereby allocates an amount and rate of water withdrawal for specific water users and subbasins, as indicated in Table V. Ecology's finding under subsection (1) of this section also supports a reservation for future allocation hereby established under the terms and conditions of this section and as specifically addressed under subsection (8) of this section. The reservations are a one time, finite resource. When and if water is fully appropriated from the reservations established in this section, all remaining waters in closed areas are hereby appropriated for instream flow use.

     A reservation is available to a user only if the conditions set forth in subsection (3) or (7) of this section are met, as well as any applicable requirements of law, including but not limited to all water resource laws and regulations. Prior to the appropriation of a water right from a reservation, ecology must receive written confirmation from the county with jurisdiction or named municipality where a reservation applies. Such confirmation must provide assurances that the county or municipality will issue building permits and subdivision approvals consistent with this chapter, including rule provisions affecting permit-exempt ground water supplies.

     The designation of specific municipal suppliers in a 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 a reservation by future rule making.

     (3) Ecology will approve a water right application for water from a 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) Existing 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 173-526-070, such as water from a hydraulically disconnected deep aquifer source or tidally influenced areas near the Columbia River;

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

     (iv) Water savings from conservation techniques, such as reuse of waste water; and

     (v) Mitigation and minimization considerations to the extent required in (d) of this subsection, impact analysis.

     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 timing, 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, such as a donation 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 improve habitat. Habitat-related offsets must compensate for the habitat loss or degradation that will result from the streamflow depletion permitted from the reservation.

     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) In keeping with the findings of the watershed plan, ecology finds that the public interest supports avoidance and minimizing impacts to tributaries. The applicant must demonstrate one of the following:

     (i) The proposed withdrawal does not impact tributaries to subbasin mainstems; or

     (ii) An impact to a tributary to a subbasin mainstem is unavoidable, as demonstrated by an impact analysis, included as part of the alternatives analysis under (a) of this subsection. In addition to demonstrating the necessary considerations under (a) of this subsection, the impact analysis must demonstrate consideration of water supply options that avoid and minimize the impact to the tributary.

     Ecology, in consultation with the department of fish and wildlife, may require an applicant to monitor effects of a ground water withdrawal as a condition of water use.

     Application review and permitting

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

     (5) Ecology, in consultation with the department of fish and wildlife, will evaluate the adequacy of proposed offsets and alternatives analysis in subsection (3) 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.

     (6) Ecology will issue a permit for use of water equal to the amount it determines from a reservation after applying the conditions of this subsection, 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 "Streamflow Depletion" in Table V, or "Water Available" in Table VI in the case of a future allocation. 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 99.44.100, any other applicable laws, and terms of an approved mitigation plan under WAC 173-526-080(4); 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.

     (7) In keeping with the findings of the watershed plan and in order to implement this rule, ecology may prioritize its decision making for a water right application for a new appropriation from a reservation under this subsection. Ecology will only approve such applications ahead of others when the new appropriation would not diminish the water available to earlier pending applicants for an appropriation from the same source of supply. Ecology's decision to prioritize an application under this subsection shall be made in conjunction with other priority processing decisions made by ecology under chapter 173-152 WAC.

     Permit-exempt ground water use

     (8) The requirements in subsection (3) of this section do not apply to permit-exempt withdrawals. However, permit-exempt withdrawals 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 community water supplier can be provided in a timely and reasonable manner. Determinations of timely and reasonable shall be consistent with public water system plans, local ordinances, and state laws.

     (b) Water use from a permit-exempt ground water well must be consistent with the allocation limits of a reservation, applicable county and municipal codes, 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 V
     Allocation of Reservation

     (9) Specific amounts of water are identified in the watershed plan for inclusion in a reservation that requires further allocation decisions at a later date. Consistent with the watershed plan, an amount and rate of use of water for specific subbasins and counties is reserved for future allocation, as indicated in Table VI and under the following terms:

     (a) Water reserved under this subsection may only be appropriated at such time that an allocation scheme is approved through a public process by each county where a particular reservation would apply. A county shall consult with the planning unit prior to approving an allocation scheme. An allocation scheme should consider the existing demands of specific water users, available water supplies, and local land use planning at the time of scheme approval.

     (b) Once an allocation scheme is approved, it shall be submitted to ecology and made available to the public by both ecology and the applicable county or counties.

     (c) In addition to the limits of available water indicated in Table VI, future users of this reservation may also be limited by any other terms established under an approved allocation scheme.

     (d) The appropriation of water under this reservation for future allocation must also conform to all other provisions under WAC 173-526-100, including the conditions under subsection (3) of this section for water right applications and subsection (7) of this section for permit-exempt ground water well uses.

Table VI
     Water reserved for future allocation

Subbasin Name*	County	Water Available (cfs)
Upper Cowlitz River	Lewis County	0.75
Cispus River	Lewis County	0.37
	Skamania County	0.37
Tilton River	Lewis County	0.37
Middle Cowlitz River (Mayfield Dam)	Lewis County	0.37
Toutle River	Lewis County	0.37
	Cowlitz County	0.37
	Skamania County	0.37
Lower Cowlitz River	Cowlitz County	0.75
	Lewis County	6.6

*	Subbasin boundaries are shown in WAC 173-526-030, and are consistent with the boundary descriptions used in the watershed plan.

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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 173-526-100(6).

     (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 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, 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 the affected 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 water user in Table V or Table VI.

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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 to restore of salmonids.

     (b) The proposed project will result in aquatic habitat benefits, and such benefits will exceed any detriment the reduced flow may have on aquatic habitat during the times and location of withdrawal(s) for the project.

     (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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