Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-16-139.

     Title of Rule and Other Identifying Information: Chapter 173-152 WAC, Water rights, this rule establishes the framework under which the department can provide for the organization of its work, prioritize basins to be assessed, conduct basin assessments, prioritize investigations of water right applications by geographic areas, and establish criteria for priority processing of applications for new water rights.

     Hearing Location(s): August 10, 2010, at the Ecology Headquarters Auditorium, 300 Desmond Drive, Lacey; on August 11, 2010, at the Everett Community College, Gray Wolf Hall, Room 374, 2000 Tower Street, Everett, WA; on August 12, 2010, at the Wenatchee City Hall, Community Center Veterans Hall, 504 South Chelan Avenue, Wenatchee, WA; on August 17, 2010, at the Ecology Regional Office Spokane, 4601 North Monroe Street, 2nd Floor Conference Room, Spokane, WA; and on August 18, 2010, at the Ecology Richland Office, Conference Room 3A, River Room, 3100 Port of Benton Boulevard, Richland, WA. All hearings begin at 6:30 p.m.

     Date of Intended Adoption: November 19, 2010.

     Submit Written Comments to: Janet L. Rajala, Department of Ecology, Eastern Regional Office, 4601 North Monroe Street, Spokane, WA 99205-1205, e-mail jaca461@ecy.wa.gov, fax (509) 329-3529, by 5 p.m., September 1, 2010.

     Assistance for Persons with Disabilities: Contact Judy Beitel by August 2, 2010. Persons with hearing loss, call 711 for Washington relay service. Persons with a speech disability, call 877-833-6341.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule making would amend chapter 173-152 WAC to reflect the legislative amendments to chapters 90.03 and 90.90 RCW, Columbia River Basin water supply, enacted during the 2006 legislative session. The proposed language offers new language identifying how ecology will manage water rights under chapter 90.90 RCW. Proposed language amends priority processing described in WAC 173-152-050 to include the processing of chapter 90.90 RCW reservoir storage applications.

     Reasons Supporting Proposal: The amended rule will provide the details as to how applications under chapter 90.90 RCW will be processed, the order in which they are processed, and the criteria used. Priority processing under the proposed WAC 173-152-050 will provide some clarity on processing applications that were acknowledged within the Supreme Court decision, in Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997) and clarify the changes regarding public water supply emergencies and priorities.

     Statutory Authority for Adoption: RCW 43.21A.064(9), 43.27A.090(11), chapters 90.03, 90.44, and 90.54 RCW.

     Statute Being Implemented: Chapters 90.03, 90.44, 90.54 and 90.90 RCW, Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997).

     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: Janet Rajala, Spokane, (509) 329-3421; Implementation and Enforcement: Water Resources Regional Offices, Lacey, (360) 407-6300, Bellevue, (425) 649-7000, Yakima, (509) 575-2490, and Spokane, (509) 329-3400.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This is not a significant legislative rule.

     A cost-benefit analysis is not required under RCW 34.05.328. This is not a significant legislative rule.

July 6, 2010

Polly Zehm

Deputy Director

OTS-3268.1

AMENDATORY SECTION(Amending Order 97-14, filed 2/27/98, effective 3/30/98)

WAC 173-152-010   Purpose.   This rule establishes the framework under which the department can:

     (1) Provide for the organization of its work((,));

     (2) Prioritize basins to be assessed((,));

     (3) Conduct basin assessments((,));

     (4) Prioritize investigations of water right applications by geographic areas((,)); and

     (5) Establish criteria for priority processing of applications for:

     (a) New water rights ((and));

     (b) Applications for change or transfer of existing water rights; and

     (c) Applications for water supply infrastructure.

[Statutory Authority: RCW 43.21A.064(8) and 43.27A.090(11). 98-06-042 (Order 97-14), § 173-152-010, filed 2/27/98, effective 3/30/98.]

     (1) (("Department" means the department of ecology.

     (2) "Public water system" means a water supply system as defined in RCW 70.119A.020.)) "Acquisition" means, for the purposes of WAC 173-152-035, buying or leasing water rights using the Columbia River account.

     (2) "Application" means an application for either a new appropriation or a change or transfer to an existing water right or both made under chapters 90.03 and 90.44 RCW.

     (3) "Applications to change or transfer" means applications made under RCW 90.03.380 or 90.44.100.

     (4) "Columbia River account" means, for the purposes of the WAC 173-152-035, a fund that is created, funded, and spent as provided in chapter 90.90 RCW.

     (5) "Columbia River basin" means, for the purposes of WAC 173-152-035, water resource inventory areas (WRIAs) 29 through 62 located in southwest and eastern Washington where water sources flow into the Columbia River upstream of Bonneville Dam. A map of the Columbia River basin by WRIA is shown at figure 1.

     (6) "Columbia River mainstem" means, for the purposes of WAC 173-152-035, all water in the Columbia River within the ordinary high water mark of the main channel of the Columbia River between the border of the United States and Canada and the Bonneville Dam, and all ground water within one mile of the high water mark. Water is within the mainstem if it is within a straight line drawn across the mouth of each tributary to delineate the mainstem channel. The mainstem channel does not include any of the backwater areas on tributaries nor does it include tributary surface water rights within one mile of the Columbia River.

     (7) "Competing applications" means all existing applications for water right from the same water source, whether for a new water right or for a change or transfer of an existing water right.

     (((5) "Same)) (8) "Department" means the department of ecology. For the purposes of WAC 173-152-035, all water in the Lower Snake River within the ordinary high water mark of the main channel of the Lower Snake River from the head of Ice Harbor pool to the confluence of the Snake and Columbia rivers, and all ground water within one mile of the high water mark. Water is within the mainstem if it is within a straight line drawn across the mouth of each tributary to delineate the mainstem channel. The mainstem channel does not include any of the backwater areas on tributaries nor does it include tributary surface water rights within one mile of the Lower Snake River.

     (9) "Mitigation" means a project with a consumptive water use element compensated by allowing no significant impact on a water source or elimination of impairment.

     (10) "New application" means any application for a permit made under chapters 90.03 and 90.44 RCW.

     (11) "Nonconsumptive" means water use where there is no diminishment of the amount or quality of the water source.

     (12) "Pool" means, for the purposes of WAC 173-152-035, a reach of the Columbia or Lower Snake River mainstems inundated and under the downstream hydraulic control of:

     (a) U.S. Army Corps of Engineers.

     (b) U.S. Bureau of Reclamation.

     (c) Any mid-Columbia public utility district.

     (13) "Public water system" means a water supply system as defined in RCW 70.119A.020.

     (14) "Sources of supply developed under chapter 90.90 RCW" means new storage, modification of existing storage, conservation, pump exchanges, acquisition or any other projects designed to provide access to new water supplies.

     (15) "Transfer" means a transfer, change, amendment, or other alteration of a part or all of a water right authorized under chapters 90.03, 90.38, 90.42, and 90.44 RCW.

     (16) "Voluntary regional agreement" or "VRA" means an agreement entered into by the department with another entity for the purposes of providing new water for out-of-stream use, streamlining the application process, and protecting instream flow.

     (17) "Water budget neutral project" means a project where diversions or withdrawals of waters of the state are proposed in exchange for at least an equivalent amount of water from other water rights, donation of water rights into trust, relinquishment of other water rights, or other mitigation projects that result in no diminishment of the source.

     (18) "Water source" ((or "source of water")) means an aquifer, aquifer system, or surface water body, including a stream, stream system, lake, or reservoir and any spring water or underground water that is part of or tributary to the surface water body or aquifer((,)) that the department determines to be an independent water body for the purposes of water right administration.

[Statutory Authority: RCW 43.21A.064(8) and 43.27A.090(11). 98-06-042 (Order 97-14), § 173-152-020, filed 2/27/98, effective 3/30/98.]

     (1) The department may establish regions and maintain regional offices or field offices for the purposes of maximizing the efficiency of its work. Regional offices and their geographic jurisdictions as of the effective date of this rule are as follows:

     (a) Northwest regional office serving Island, King, Kitsap, San Juan, Skagit, Snohomish, and Whatcom counties((;)).

     (b) Southwest regional office serving Clallam, Clark, Cowlitz, Grays Harbor, Jefferson, Lewis, Mason, Pacific, Pierce, Skamania, Thurston, and Wahkiakum counties((;)).

     (c) Central regional office serving Benton, Chelan, Douglas, Kittitas, Klickitat, Okanogan, and Yakima counties((; and)).

     (d) Eastern regional office serving Adams, Asotin, Columbia, Ferry, Franklin, Garfield, Grant, Lincoln, Pend Oreille, Spokane, Stevens, Walla Walla, and Whitman counties.

     (2) The department will make decisions on ((new water right)) applications ((and applications for change or transfer of an existing water right)) within a region or within a regional or field office's geographic area in the order the applications ((was)) were received except as allowed under RCW 90.03.380 (5)(c), and except as provided for in subsection (3) of this section and WAC 173-152-050.

     (3) The department may, based on the criteria identified in subsection (((4))) (5) of this section, conduct ((an)) investigations and make decisions on one or more ((water right)) applications for the use of water from the same water source. ((Within)) A regional office((,)) may investigate more than one water source ((may be investigated)) at a time.

     (4) When the department investigates numerous applications for water from the same water source ((are being investigated)), the decisions will be made in the order in which the applications were received, except all allowed under RCW 90.03.380 (5)(c). The department will consider each application ((will be considered)) individually under the requirements of chapters 90.03, 90.38, 90.42, and 90.44 RCW, as applicable.

     (((4))) (5) Criteria for selecting a water source include, but are not limited to:

     (a) The number and age of pending applications, and the quantities of water requested((;)).

     (b) The ability to efficiently investigate applications because of the availability of data related to water supply and future needs, ((streamflow)) stream flow needs for instream values, and hydrogeology of the basin((;)).

     (c) The ability of the department to support implementation of local land use plans or implementation of water resource plans((;)).

     (d) The projected population and economic growth in the area((; and/or)).

     (e) The completion of an initial basin assessment as provided for in WAC 173-152-040(5).

[Statutory Authority: RCW 43.21A.064(8) and 43.27A.090(11). 98-06-042 (Order 97-14), § 173-152-030, filed 2/27/98, effective 3/30/98.]

     (1) The department implements chapter 90.90 RCW in counties or portions of counties in the central, eastern, and southwest regional offices, as shown in the map by counties in figure 2.

     (2) The department processes the following types of applications under chapter 90.90 RCW:

     (a) New applications proposing to divert surface water from the Columbia River between the border of the United States and Canada and the Bonneville Dam.

     (b) New applications proposing to divert surface water from the Lower Snake River downstream of Lower Monumental Dam.

     (c) New applications associated with a voluntary regional agreement proposing to divert or withdraw water from the Columbia River mainstem or Lower Snake River mainstem.

     (d) New applications proposing to divert surface water within the Columbia River basin for storage or net water savings funded in whole or in part by the Columbia River account.

     (e) New applications proposing to withdraw ground water within the Columbia River basin for storage or net water savings funded in whole or in part by the Columbia River account where the proposed well(s) use(s) can be mitigated using the same source as that of the withdrawal.

     (f) Applications for water rights and trust water within the Columbia River basin associated with a project funded by the Columbia River account.

     (3) Criteria for selecting a water source for processing new applications from water supplies developed in whole or in part by the department include, but are not limited to:

     (a) The priorities outlined in RCW 90.90.020(3).

     (b) The funding agreements and environmental reviews used to develop a project.

     (c) The number and age of pending applications, and the quantities of water requested.

     (d) Existence of distressed or endangered fish stocks.

     (e) The location of the source to be developed.

     (f) Whether the place of use must stay within the WRIA as limited under RCW 90.90.010 (2)(a).

     (4) The department may, based on the criteria identified in subsection (3) of this section, conduct investigations and make decisions on one or more applications for the use of water from the same water source. The department may investigate more than one water source at the same time.

     (5) When numerous applications for water from the same water source are investigated, the department may make decisions on one or more water right applications in the order in which the applications are received, whether or not the applications are processed collectively.

     (6) For purposes of chapter 90.90 RCW, if the water source developed is:

     (a) On the Columbia River between Bonneville Dam and Canada, the department will process applications in the order in which the applications are received, whether or not the applications are processed collectively:

     (i) All new surface water applications within the same pool and downstream of the developed source of supply.

     (ii) All new ground water applications where the proposed well(s) can be mitigated using the same source as that of the withdrawal.

     (iii) Applications for change or transfer or trust water applications associated with development of the source if funded by the Columbia River account.

     (b) On the Snake River downstream of Lower Monumental Dam, the department will process applications in the order in which the applications are received, whether or not the applications are processed collectively:

     (i) All new surface water applications within the same pool and downstream of the developed source of supply.

     (ii) All new ground water applications where the proposed well(s) can be mitigated by the developed source of supply.

     (iii) Applications for change or transfer or trust water applications associated with development of the source if funded by the Columbia River account.

     (c) On the Columbia River mainstem or Lower Snake River mainstem under a voluntary regional agreement, the department will process applications in the order in which the applications are received, whether or not the applications are processed collectively:

     (i) All new surface water applications within the same pool and downstream of the developed source of supply.

     (ii) All new ground water applications within one mile of the high water mark where the proposed well(s) can be mitigated using the same source as that of the withdrawal.

     (iii) Applications for change or transfer to trust water applications associated with development of the source if funded by the Columbia River account.

     (d) On a tributary in the Columbia River basin for a source of supply developed using Columbia River account funds, the department will process applications in the order in which the applications are received, whether or not the applications are processed collectively:

     (i) All new downstream tributary surface water applications.

     (ii) All new surface water applications on the Columbia River within the same pool and downstream of the developed source of supply.

     (iii) All new ground water applications within the Columbia River basin where the proposed well(s) can be mitigated using the same source as that of the withdrawal.

     (iv) Applications for change or transfer or trust water applications associated with development of the source if funded by the Columbia River account.

     (e) Upstream of Lower Monumental Dam or on a tributary to the Lower Snake River for a source of supply developed using Columbia River account funds, the department will process applications in the order in which the applications are received, whether or not the applications are processed collectively:

     (i) All new downstream tributary surface water applications.

     (ii) All new surface water applications on the Lower Snake and Columbia rivers within the same pool and downstream of the developed source of supply.

     (iii) All new ground water applications within the Lower Snake and Columbia river basins where the proposed well(s) can be mitigated using the same source as that of the withdrawal.

     (iv) Applications for change or transfer or trust water applications associated with development of the source if funded by the Columbia River account.

     (f) In the Columbia River basin using funds from the Columbia River account through acquisition or transfer of water rights in accordance with RCW 90.90.010 (2)(a), the department will process applications in the order in which the applications are received, whether or not the applications are processed collectively:

     (i) All new downstream tributary surface water applications within the same WRIA.

     (ii) All new surface water applications on the Lower Snake or Columbia rivers within the same WRIA.

     (iii) All new ground water applications where the proposed well(s) can be mitigated using the same source as that of the withdrawal within the same WRIA.

     (7) The department will consider each application individually under the requirements of chapters 90.03, 90.38, 90.42, and 90.44 RCW.

     (8) Before expediting an application for new storage pursuant to WAC 173-153-050(3), the department shall provide written notification to:

     (a) County legislative authorities.

     (b) Watershed planning groups with jurisdiction in the location of the reservoir.

     (c) The department of fish and wildlife.

     (d) Affected tribal governments and federal agencies.

     (9) Any notified entity identified in subsection (7) of this section may raise concerns, either verbally or in writing, to the department about the department's decision how to prioritize an application. The concern must be raised within thirty calendar days of receiving the department's notification. The department will consider the concerns as it processes the application.

[]

     (a) Water use((,));

     (b) Water availability((,));

     (c) The quantity of water allocated to existing rights((,));

     (d) Claims((,));

     (e) Instream flow((,)); and

     (f) The hydrology of a basin ((to use)).

     The department will use this information in making decisions on future water resource allocation and use.

     (2) The department may also enter into agreements or contracts with public or private parties to conduct assessments.

     ((Geographic areas or same water sources within a regional office service area will be identified or considered for assessment)) (3) In cooperation with federal, state, tribal, and local jurisdictions and other interested parties((. In determining a basin or same water source to assess, the department's consideration may include, but is not limited to, the following factors)), each regional office will consider assessing a geographic area or water source within its service area using criteria such as:

     (a) The number and age of pending applications, and the quantities of water requested((;)).

     (b) The projected population, growth and off-stream needs for water in the area((;)).

     (c) Known water quality problems((;)).

     (d) Existence of distressed or endangered fish stocks((;)).

     (e) Risk of impairment to senior rights (including instream flow rights)((;)).

     (f) Availability of data related to water supply and future need, ((streamflow)) stream flow needs for instream values, and hydrogeology of the basin((;)).

     (g) The number of claims to water rights submitted pursuant to chapter 90.14 RCW((; and)).

     (h) The ability of the department to support local land use activities.

     (((2))) (4) Each region may conduct multiple basin assessments ((may be conducted within a region)) at the same time. When the department determines ((it)) conducting a basin assessment is in the public interest ((to conduct a basin assessment)), it will:

     (a) Publish notice of the intent to conduct a basin assessment once a week, for two consecutive weeks in a newspaper of general circulation within the geographic area((;)).

     (b) ((Hold in abeyance)) Notify any Indian tribe with potential interest in the basin of the intent.

     (c) Temporarily cease making decisions on all competing water right applications in the basin ((after publication of a notice to initiate a basin assessment and)) proposed for assessment until the initial basin assessment is complete and published except for applications prioritized pursuant to WAC 173-152-050((; and)).

     (((c))) (d) Make decisions on competing applications after the initial basin assessment is complete and published to the extent sufficient information is available.

     (((3))) (5) Initial basin or water source assessments will be conducted to assemble the following existing information:

     (a) Physical characterization of the watershed related to:

     (i) Climatic impacts to water resources((;)).

     (ii) Geology((;)).

     (iii) ((Streamflow)) Stream flow trends((;)).

     (iv) Ground water elevation trends and the contribution of ground water to ((streamflows; and)) stream flows.

     (v) Surface and ground water quality in the basin or water source.

     (b) Out-of-stream water use characterization related to:

     (i) Water rights, federal rights, and claims to water rights((;)).

     (ii) Estimated use of water pursuant to water rights and claims to water rights((;)).

     (iii) Water use pursuant to RCW 90.44.050((;)).

     (iv) Extent of unauthorized water use((; and)).

     (v) Potential future demands for out-of-stream water use in the basin.

     (c) Instream water use characterization related to:

     (i) National Pollution Discharge Elimination System permits and the need for instream flow for pollution assimilation;

     (ii) Fish stocks and habitat requirements, including existing, defined or engineered, or approved restoration projects;

     (iii) Wildlife habitat requirements;

     (iv) Recreational requirements; and

     (v) Water rights and claims to water rights.

     (((4))) (6) Upon completion and publication of the initial basin assessment, the department ((in consultation)) will consult with the public and federal, state, tribal, local jurisdictions and interested parties ((will)) to evaluate the basin assessment. The evaluation will assess the data, analysis, and presentation of information in the basin assessment in terms of quality, adequacy, and utility to make decisions on future water resource allocation and use.

     (((5))) (7) The department will make decisions on competing applications for water from a water source ((of water)) within the basin where sufficient information for water resource allocation exists. If the department determines that the information assembled and ((correlated)) compared is not sufficient, the department may withdraw the water source from appropriation pursuant to RCW 90.54.050(2). The department in consultation with the public, federal, state, tribal, local jurisdictions and interested parties will design and conduct additional investigations, to the extent resources allow, to obtain the information necessary to make future decisions on water allocation and use.

     (((6))) (8) The department shall make available on-line information obtained and compiled during an initial basin assessment of the water resources in a basin or water source ((will be contained in an open file technical report at the regional or field office)).

[Statutory Authority: RCW 43.21A.064(8) and 43.27A.090(11). 98-06-042 (Order 97-14), § 173-152-040, filed 2/27/98, effective 3/30/98.]

     (1) Within each regional office, the department may prioritize an application ((may be processed prior to)) ahead of competing applications if the application resolves or alleviates either a public health or safety emergency ((caused by a failing)) that exists for:

     (a) A public water supply system currently providing potable water to existing users; or

     (b) Any emergency for which immediate action is necessary for preservation of public health or safety.

     (2) Inadequate water rights for a public water system to serve existing hook-ups or to accommodate future population growth or other future uses do not constitute a public health or safety emergency. The application must ((be filed)) specifically propose to correct the actual or anticipated cause(s) of the ((public water system failure)) emergency. ((To be considered a failing public water system, the system)) An emergency must meet one or more of the following conditions:

     (a) ((The department, upon notification by and in consultation with the department of health or local health authority, determines)) A public water system has failed((, or is in danger of failing within one year,)) to meet state board of health standards for the delivery of potable water to existing water system users in adequate quantity or quality to meet basic human drinking, cooking and sanitation needs((;)).

     (b) The current water source has failed or will fail within one year so that the public water system is or will become incapable of exercising its existing water right to meet existing needs for drinking, cooking and sanitation purposes after all reasonable water use efficiency and conservation efforts have been implemented((; or)).

     (c) A change in source is required to meet drinking water quality standards and avoid unreasonable treatment costs, or the state department of health determines that the existing source of supply is or will become unacceptable for human use.

     (((2) An application may be processed prior to)) (d) Immediate action is necessary for preservation of public health or safety.

     (e) If a public water system or source is in danger of failing within five years, the department will prioritize processing the application to correct the anticipated cause(s) of the emergency prior to actual system failure.

     (3) Within each regional office, the department may prioritize an application ahead of all competing applications, but after those applications prioritized in subsection (1) of this section, if the department determines the application:

     (a) ((Immediate action is necessary for preservation of public health or safety; or)) Was filed by claimants participating in adjudication, and the court requires a prompt decision.

     (b) ((The)) Is for a proposed water use that is nonconsumptive and if approved would substantially enhance or protect the quality of the natural environment((.

     (3) An application for change or transfer to an existing water right may be processed prior to competing applications provided one or more of the following criteria are satisfied:

     (a) The change or transfer if approved would substantially enhance the quality of the natural environment; or

     (b) The change or transfer if approved would result in providing public water supplies to meet general needs of the public for regional areas;

     (c) The change or transfer was filed by water right holders participating in an adjudication, and a decision is needed expeditiously to ensure that orders or decrees of the superior court will be representative of the current water use situation.

     (4) Within each regional office, the department shall process applications satisfying the criteria in subsections (1) through (3) of this section in the following priority:

     (a) Public health and safety emergencies under subsection (1) of this section;

     (b) Preservation of other public health and safety concerns under subsection (2)(a) of this section;

     (c) Transfers or changes under subsection (3)(a) of this section;

     (d) Transfers or changes under subsection (3)(b) of this section;

     (e) Transfers or changes under subsection (3)(c) of this section; and

     (f) Nonconsumptive uses under subsection (2)(b) of this section)) including donations for instream flows or a change or transfer of water into the state trust water right program in accordance with chapter 90.38 or 90.42 RCW.

     (c) Is for a change or transfer and, if approved, would result in providing public water supplies including, but not limited to, consolidation of two or more public water systems, to meet general public needs for the regional areas.

     (d) Is for a seasonal water right change effective for a term of one year or less.

     (e) Proposes temporary water use for a public project such as road building.

     (f) Proposes a water budget neutral project as defined in WAC 173-152-020(18).

     (g) Is for a new water right that relies on mitigation from a water bank or in the trust water right program in accordance with chapter 90.38 or 90.42 RCW, or is to transfer water rights from a water bank or the trust water right program to a new use.

     (4) The department may prioritize ahead of competing applications, except as prioritized in subsections (1) and (2) of this section, a new application for diversionary rights into reservoirs that, if approved, would not conflict with adopted state instream flow rules, federal flow targets, or federal biological opinions, and is funded or supported pursuant to chapter 90.90 RCW.

[Statutory Authority: RCW 43.21A.064(8) and 43.27A.090(11). 98-06-042 (Order 97-14), § 173-152-050, filed 2/27/98, effective 3/30/98.]

[Statutory Authority: RCW 43.21A.064(8) and 43.27A.090(11). 98-06-042 (Order 97-14), § 173-152-060, filed 2/27/98, effective 3/30/98.]

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